Thomas v. Quarles

• Citation: 64 Tex. 491
• Decision Date: 23 October 1885
• Docket Number: Case No. 1876.
• Parties: LEVI THOMAS v. ALF. QUARLES ET AL.
• Court: Supreme Court of Texas

64 Tex. 491

LEVI THOMAS

v.ALF. QUARLES ET AL.

Case No. 1876.

Supreme Court of Texas.

Oct. 23, 1885.

ERROR from Anderson. Tried below before the Hon. F. A. Williams.

Gammage & Gregg, for plaintiff in error, on parties, cited: Pitts v. Ennis, 1 Tex., 604;Blair v. Gay, 33 Tex., 157;B. B. S. Channel Co. v. Bruly, 45 Tex., 7; De La Verga v. League, vol. 5, 33 Tex. L. Rev., p. 557.

That the wife was concluded by her long acquiescence in the occupancy and assertion of right by the child of a portion of the home tract of land, they cited: De Cordova v. Smith, 9 Tex., 129;Tiebout v. Millican, 61 Tex., 514; Wait's Actions and Defenses, vol. 6, p. 207, § 17.

That the homestead cannot be extended against the adverse occupant, beyond what it was at the death of the head of the family, they cited: Rogers v. Ragland, 42 Tex., 422;Hendrix v. Hendrix, 46 Tex., 6;Slavin v. Wheeler, 61 Tex., 654.

That the surviving wife could only recover on paying for improvements, they cited: Bond v. Hill, 37 Tex., 627.

Thos. B. Greenwood, for defendants in error, that the husband cannot make a parol gift of a portion of the homestead binding on the wife, cited: Const. of 1869, art. 12, General Provisions, sec. 14; art. 1003, P. D.; Berry v. Donly, 26 Tex., 746;Cross v. Everts, 28 Tex, 524;Fitzgeral v. Turner, 43 Tex., 79.

ROBERTSON, ASSOCIATE JUSTICE.

This was an action of trespass to try title to one hundred and sixty acres of land, and the defendant pleaded that he was in possession of a part of the tract, under no claim of his own, but by virtue of a right of his wife under a parol gift from her father, and prayed the suit might abate until his wife should be made a party by the plaintiff. To this plea an exception was properly sustained in the court below. The defendant could protect his possession under his wife's claim as well without as he could with her, without jeopardizing her rights by any judgment that could be recovered against him. Read v. Allen, 56 Tex., 182. The only disadvantage of such course is upon the plaintiff, in the necessity she may be under of litigating a second time the same matters.

The plaintiff, Cely Quarles, and her first husband, Richard Jasper, settled upon the one hundred and sixty acre tract in 1873 as a homestead. Their children were all grown, and, with the exception of one son, living to themselves. In the summer of 1875 Richard Jasper died. Before his death he made a parol gift of a part of the tract in the southeast corner to his daughter, the wife of defendant, and defendant at once commenced to improve it. The defendant says his wife was to have in this part of the tract one-third of the whole of it, but the boundaries of this part were not fixed, nor was it more definitely identified than as on the east side out of the southeast corner. In the fall after the death of Richard Jasper, defendant moved his family into a house he had built in the southeast corner of the tract, and they continued to reside there from that date without interruption until the commencement of this suit on January 13, 1885. The improvement he occupied was known as the Thomas place, and it was matter of general notoriety that Richard Jasper had given to Mrs. Thomas, the wife of defendant, a home on that part of the tract. From time to time, since their occupancy commenced, the defendant had put in cultivation thirty acres of the land and made other permanent and valuable improvements. The widow of Richard Jasper, who has ever since lived upon the tract as her home, in 1879 married Alfred Quarles, and some two or three years ago she and the defendant's family had a falling out over a church quarrel, and then for the first time she questioned the defendant's right to occupy the southeast portion of the home tract. The improvements he had made were in sight of the plaintiff's residence, and while she testifies that she knew nothing of Mrs. Thomas' claim of title, it is believed that the fact, if deemed an issue in the court below, would have been found the other way. On the other hand, there is nothing in the record to show any express concurrence on the part of Mrs. Jasper in the gift made by her husband to Mrs. Thomas. That the gift thus made was void is not contested by counsel for plaintif...