Whetstone v. Coffey

• Decision Date: 01 January 1877
• Citation: 48 Tex. 269
• Parties: MARGARET WHETSTONE v. J. S. COFFEY ET AL.
• Court: Texas Supreme Court

48 Tex. 269

MARGARET WHETSTONE

v.J. S. COFFEY ET AL.

Supreme Court of Texas.

1877.

APPEAL from Hopkins. Tried below before the Hon. Green J. Clark.

This suit was brought by appellant for the recovery of three hundred and twenty acres of land in Hopkins county, which she alleges was the community homestead of herself and her late husband, Anderson Whetstone. The petition alleges that said Whetstone sold the same by quit-claim deed to one B. A. Vansickle, in December, 1859; that at that time she was the lawful wife of said Whetstone; that they lived upon said land as their homestead, having no other at the date of said sale; that she did not give her consent to said sale, nor join with her said husband in said deed; that her said husband never furnished her another homestead after said sale; that she had not, up to the date of the institution of this suit, owned any land, nor resided upon any land belonging to herself, nor to her late husband, Anderson Whetstone, and that the defendants, as heirs and representatives of Harris Coffey, late of said Hopkins county, deceased, holding possession of said premises, and claiming title thereto under said Vansickle, did so with full knowledge of appellant's title.

Appellant also alleges, in her petition, the marriage relation between herself and said Anderson Whetstone was dissolved by a decree of divorce in 1865, without any adjudication as to the property rights of either party. She prayed for a decree for title to her community half of said three hundred and twenty acres of land, and that the same be set apart to her.

To this petition, defendants interposed a general demurrer, which was sustained, as is alleged by counsel, upon the ground “that a divorced woman cannot maintain an action for property acquired during marriage,” and upon the doctrine of res adjudicata. The plaintiff declined to amend, and judgment was rendered against her on demurrer, to which she excepted. From that judgment she prosecutes this appeal, and assigned for error the sustaining of defendants' general demurrer.King & Blythe and J. K. Milam, for appellant, cited Paschal's Dig., 3452; Tiemann v. Tiemann, 34 Tex., 522;Craig v. Craig, 31 Tex., 203; Bishop on Marriage, (4th ed.,) vol. 2, secs. 426, 481, 482.

[No briefs are on file for appellees.]

ROBERTS, CHIEF JUSTICE.

The court sustained a general exception to the petition of plaintiff, which was a suit for an undivided half interest in the land alleged to have been sold by her husband while it was a homestead, during her coverture, without her consent.

There is no other answer filed, except the plea of not guilty.

There is no ground of deficiency in the petition, as amended, pointed out by special exceptions, and there is no brief filed by appellees.

We are therefore not informed, by the record, upon what ground the court below acted. The petition, however loosely and carelessly worded it may be, seems to cover sufficient grounds to contain a cause of action-- prima facie, at least.

Upon a general exception, every reasonable intendment should be indulged in favor of the pleading thus excepted to.

We do not propose to discuss all of the questions which might start up in our view in the consideration of a case thus presented. It might be of no practical service in the adjudication of the rights of the parties, when the facts may appear in evidence upon a trial of the cause.

We learn, from the brief of the appellant's counsel, that the exception to the petition was sustained, upon the ground “that a divorced woman cannot maintain an action for property acquired during the marriage, upon the doctrine of res judicata.” That is, the court, having the authority, upon granting the divorce, to make a partition of the community property, if it is not done in the suit for the divorce, the divorced woman is precluded from bringing a suit afterwards to recover any part of the community property.

It is shown, in the petition, that Anderson Whetstone and his wife lived upon the land from 1856 to 1859, full three years, and took the proper steps to secure 320 acres thus settled upon, by preëmption; and that a patent afterwards was issued to said Whetstone for said land, as a preëmption; and that in December, 1859, said Anderson Whetstone, while he was so possessed of said land as a homestead, sold it to Ben. Vansickle, without her consent being given to the said sale. At the time of said sale, the right to the 320 acres, as a preëmption, had been perfected, as evidenced by the patent, although it did not issue until after that time. (Babb v. Carroll, 21 Tex., 765.) It was then community property of Anderson Whetstone and of his wife, Margaret Whetstone. He, as the husband, was vested with authority, by the laws of this State, to sell 120 acres of that land, without her consent. (Paschal's Dig., art. 4642.) But as to 200 acres of that land, being their homestead, the authority to alienate it, without his wife's consent, given in the mode prescribed by law, was expressly withheld from him by the Constitution of 1854, then in force. (Const., art. 7, sec. 22; Paschal's Dig., art. 1003, page 65.)

Her right to that much of the land was secured to her, and protected from his power of alienation through his transfer to Vansickle, by the existence of the ostensible fact of its then being their homestead, and in their possession. To show that she never parted with said right, by abandonment or otherwise, she alleged that she was forced to leave her said homestead, and follow her then husband and family; that he shortly thereafter abandoned her; that neither he nor she had any other homestead up to the time that a divorce was obtained, in 1865; that she has never acquired one since, and that Harris Coffey, the ancestor of plaintiffs, purchased the land from Vansickle in 1860, with full notice of her right to it.

Under such a state of facts, it is not to be concluded, that she had lost her right to the land up to the time of the decree of divorce, by his abandonment of, and separation from, her. If it was for good cause, it did not defeat her right to her interest in the community property. In the case of Byrne v. Byrne, it is said: “When the divorce was decreed, it was a dissolution of the marital rights in relation to the community property, and the wife, although degraded, was entitled to her share of such property, and to her own separate property, if any she had.” (3 Tex., 341.)

In the case of Newland v. Holland, it is said, that the abandonment by the wife of the husband, without just cause, before his death, does not deprive her of her rights to her share of the community property, and though it would defeat any homestead claim to his separate property, there being no other than separate property, still she was entitled, under the laws, to her distributive share of his separate property, the same as though she had not abandoned him before his death. (45 Tex., 588.)

In this suit, the land is not claimed by virtue of a homestead right; but the fact that the land was a homestead at the time it was attempted to be sold by her husband without her consent is alleged, to show that, by that illegal sale, she was not then divested of her community interest in the land that was covered by the homestead, and thereby shielded and saved to her, and protected from his absolute control and disposition. Her claiming that the half of the whole tract was thus protected, does not make her claim bad for so much of the tract as was in fact thus protected.

The question, then, is fairly presented, whether or not she is precluded now from claiming the community interest, from which she was not divested by the illegal act of her husband, because there was no adjudication upon, and partition of, the community property, between herself and her husband, in the divorce suit in 1865.

In the case of Byrne v. Byrne, 3 Tex., 341, previously cited, the...