Tanton v. Tanton

• Decision Date: 06 February 1919
• Docket Number: (No. 909.)
• Parties: TANTON v. TANTON.
• Court: Texas Court of Appeals

209 S.W. 429

TANTON v. TANTON.

(No. 909.)

Court of Civil Appeals of Texas. El Paso.

February 6, 1919.

Rehearing Denied March 6, 1919.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Mary H. Tanton against Nathan W. Tanton, for divorce. Decree for plaintiff, and defendant appeals. Reversed and remanded.

M. W. Stanton, of El Paso, for appellant.

W. W. Bridgers, of El Paso, for appellee.

HIGGINS, J.

Mary H. Tanton, appellee, sued her husband, Nathan W. Tanton, for a divorce, alleging that he had been guilty of excesses, cruel treatment, and outrages of such nature as to render their living together insupportable; and for partition of an undivided one-half interest in a tract of land which she claimed as her separate property. The undivided one-half interest in this land was conveyed to Mrs. Tanton by Mr. Tanton while they were husband and wife. There had been a previous separation of the parties, prior to the separation out of which the present divorce suit originated. Upon the previous separation a reconciliation had been effected, and the deed by Tanton to his wife was made and delivered at that time. Appellant vigorously contested the suit for divorce, and by cross-action sought to have the deed mentioned set aside and canceled.

Upon trial before a jury the case was submitted upon special issues, all of which were answered in Mrs. Tanton's favor. Judgment was rendered for a divorce with recovery and partition of an undivided one-half interest in said land. Partition of the community estate was also ordered.

We shall not attempt to follow the specifications of error as they are presented in the brief. Under the view of the case which we have, it is sufficient to indicate our holding upon the salient and controlling features of the case.

1. The record discloses that Mrs. Tanton, formerly Gavin, was married in Austin, Tex., on December 21, 1909, to one Charles Schaeffer. On November 17, 1910, she was married to Mr. Tanton in El Paso, Tex. There was no direct evidence offered to show that she had been divorced from Schaeffer prior to her marriage to Tanton. On the trial, appellant requested the submission of instructions, which, in effect, were peremptory instructions to find against Mrs. Tanton upon her right to divorce. These charges were requested upon the theory that she had not shown a valid marriage to Mr. Tanton because at the date of her marriage she was not divorced from Schaeffer. Since the record discloses that Mr. and Mrs. Tanton were of full age on November 17, 1910, and upon that date a marriage ceremony between them was performed; that for several years thereafter they lived together as husband and wife, it would have been improper to have given a peremptory instruction based upon the assumption that the marriage relation between Mrs. Tanton and Schaeffer had not been dissolved at the time she married Tanton. In the absence of any direct evidence upon the subject, the facts stated were sufficient prima facie to raise a presumption of fact that prior to November 17, 1910, the marriage relation between Mrs. Tanton and Schaeffer had been dissolved. Nixon v. Wichita L. & Co., 84 Tex. 408, 19 S. W. 560; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284; Kinney v. Telephone Co., 201 S. W. 1180; Wingo v. Rudder, 120 S. W. 1073; Harvey v. Carroll, 72 Tex. 63, 10 S. W. 334; Hammond v. Hammond, 43 Tex. Civ. App. 284, 94 S. W. 1067.

2. Those assignments are sustained which complain of the sufficiency of the evidence to sustain the decree of divorce. To detail the incidents which resulted in the separation of the...