Wiggins v. Holmes

• Decision Date: 07 May 1931
• Docket Number: No. 997.,997.
• Citation: 39 S.W.2d 162
• Parties: WIGGINS et al. v. HOLMES et al.
• Court: Texas Court of Appeals

Page 162

39 S.W.2d 162

WIGGINS et al. v. HOLMES et al.

No. 997.

Court of Civil Appeals of Texas. Waco.

May 7, 1931.

Rehearing Denied June 11, 1931.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by L. J. Holmes and others against Cicero Wiggins and others. Judgment for plaintiffs, and defendants appeal.

Affirmed in part and reversed and remanded in part for new trial.

R. L. Henderson, of Waco, for appellants.

Sleeper, Boynton & Kendall, of Waco, for appellees.

ALEXANDER, J.

This suit involves the title to a tract of land in Waco, Tex., on which is located several small rent houses, which land was at the time of his death, in 1903, the separate property of Jacob Wiggins. Appellant Cicero Wiggins is a nephew of Jacob Wiggins, and he and the other appellants claim title to an undivided one-half interest in said property on the theory that Jacob Wiggins died intestate, without issue, leaving only Emma Wiggins (Holmes), his widow, surviving him, and that Cicero Wiggins is the nearest of kin. Appellees contend that Jacob Wiggins left surviving him two sons and his widow and that appellees have title to the property by reason of deeds of conveyance from said sons, and they further contend they have title by the ten-year statute of limitation. The cause was tried to a jury, and at the conclusion of the testimony the trial court instructed a verdict for appellees.

If there is any material issue of fact raised by the pleadings and proof, it was of course error for the court to give the peremptory instruction. It therefore becomes necessary for us to determine this question. Appellants contend that the issue of adverse possession and whether Jacob Wiggins left any children were each controverted issues of fact. If the evidence is undisputed that Jacob Wiggins left any children surviving him, or that the appellees have held adverse possession of the property for ten years as provided by article 5510 of the Revised Statutes, the judgment should be affirmed.

We will first discuss the question as to whether Jacob Wiggins left any children surviving him. If he left any child surviving him, then Cicero, as a nephew, inherited no interest in the land. There is evidence that he married Matilda Hamilton in December, 1868, and was divorced from her in May, 1878; that he married Frankie Durham in February, 1879, and was divorced from her in May, 1883; that he married Emma Patterson in December, 1883; and that he died in 1903 leaving the said Emma Patterson Wiggins as his surviving wife. If he left any child surviving him, it was either John Wiggins or Henry Wiggins. Jacob Wiggins was a colored man, and, on account of his many marriages, none of those who testified were intimately acquainted with his family history nor the number or names of his children. The evidence introduced to show that John and Henry were children of Jacob Wiggins consisted of the alleged declarations of Jacob Wiggins, and the circumstances surrounding their association with his family. Jacob Wiggins was engaged in the hack business in the city of Waco from 1880 to the time of his death. There was evidence that there were two boys who lived with the family, worked around the stables, and rode with Jacob on his hack. In order to get passes over the tollbridge for his family, Jacob listed two boys as members of his family and referred to them as his sons. Some of the witnesses testified that John and Henry were the boys so referred to by Jacob as his sons. Others testified that John never lived with the family nor worked at the stables, but lived in another part of town and drove a hack for another transfer company. There was evidence that Jacob pointed to John and said that John was trying to claim kin with him since he had "gotten up in the world" and accumulated some property, but that he did not know anything about John. There was therefore a direct conflict in the evidence as to whether John was a son of Jacob, and this raised an issue of fact for the jury. With reference to whether Jacob had a son named Henry who survived him, there was evidence that Cicero Wiggins, one of the appellants, and Jake, Jr., were the two boys who lived with the family, worked around the stables, and rode on the hack with Jacob. Some of the witnesses testified that Jake, Jr., who died prior to the death of Jacob, was sometimes called "Henry." Others, who were in a position to know, testified that there was never any boy named Henry who lived with the family and that they never heard of a son by that name. There was therefore no clear nor positive evidence that Jacob had any such son. Whether or not the evidence showed that he had such a son depended on the inference to be drawn from all the facts and surrounding circumstances in evidence. Where the disposition of a case depends on an inference to be drawn from the facts or circumstances in evidence, or the facts sought to be established are not shown by evidence with such certainty that reasonable minds cannot differ as to the effect thereof, the trial court should not peremptorily instruct the jury thereon, but the case should be left to the jury for determination. Stooksbury v. Swan, 85 Tex. 563, 571, 22 S. W. 963; Early-Foster Co. v. W. F. Klump & Co. (Tex. Civ. App.) 229 S. W. 1015, pages 1019, 1023; Texas Life Ins. Co. v. Legg (Tex. Civ. App.) 229 S. W. 587; Boone v. City of Stephenville, 37 S.W.(2d) 842, decided by this court April 2, 1931, and cases cited in Gulf, C. & S. F. Ry. Co. v. Coffman (Tex. Civ. App.) 11 S.W.(2d) 631, pages 641, 642.

Appellants further contend that the evidence shows as a matter of law that they and those under whom they claim have had adverse possession of the property for more than ten years, and that by reason thereof the trial court was justified in giving the instructed verdict in their favor. The property involved in this appeal was the separate property of Jacob Wiggins and was occupied by him as his homestead until his death in 1903. In 1905 Emma Wiggins, his widow, married L. J. Holmes. In April, 1906, one John Wiggins filed a suit in the district court of McLennan county against Emma Wiggins Holmes and her husband, claiming that he was the son of Jacob Wiggins by a former marriage, and by reason thereof was entitled to one-half of the community property and all of the separate property of Jacob Wiggins. The jury in said cause found that John Wiggins was a son of Jacob Wiggins and awarded him one-half of the community property and all of the property involved in this appeal, subject to a one-third interest for life in Emma Wiggins Holmes and her right to occupy same during her life as a homestead. In December, 1906, Emma Wiggins Holmes purchased from John Wiggins all of his interest in the property as awarded to him under the judgment. She also secured from Henry Wiggins a deed to all his interest in the property. About 1908 Emma Holmes and her husband abandoned the property as their homestead, but continued to collect the rents and to pay the taxes thereon to the time of her death in 1926. The evidence of her occupancy of the property was sufficient to establish limitation as against a stranger, but the question is: Was it sufficient as a matter of law to show limitation against her cotenant, Cicero Wiggins? (Of course, whether Cicero Wiggins owned any interest in the land depended on the question as to whether Jacob Wiggins left any children surviving him. Since we have decided that this was a question of fact to be determined by the jury, we will assume, for the purpose of discussing the question of limitation, that Cicero Wiggins owned an interest in the land and was a cotenant with Emma Holmes.) Emma Wiggins (Holmes) as the surviving wife of Jacob Wiggins at all times, both before and after the judgment in favor of John Wiggins against her, owned an undivided interest in the property. As such surviving wife, she held a homestead interest, with the right of occupancy, in the whole of the land. If Jacob Wiggins left no children, she owned a one-half interest in fee in the property. If he left children, she owned a life estate in one-third of the property and a homestead interest in the whole thereof. Under the judgment in favor of John Wiggins, she was decreed a homestead interest in the whole of the property with a life estate in one-third thereof. She was therefore at all times a co-owner of the property. Occupancy by her as such co-owner was not therefore necessarily adverse to her cotenant, Cicero Wiggins. In order for one cotenant to assert the running of the statute of limitation in his favor against his cotenant, there must not only be an exclusive occupancy of the property under an adverse claim, but notice of such hostile adverse claim must in some way be brought home to the other cotenant. His occupancy even of the whole of the property will be presumed to be in recognition of the common title unless and until notice of his adverse claim is brought either to the direct attention of his cotenant or unless his acts are of such unequivocal notoriety as that the other cotenant will be presumed to have notice of such adverse holding. Long v. McCoy (Tex. Civ. App.) 294 S. W. 633, 637; McCoy v. Long (Tex. Com. App.) 15 S.W.(2d) 234; Arrington v. McDaniel (Tex. Com. App.) 14 S.W.(2d) 1009, 1012; Liddell v. Gordon (Tex. Com. App.) 254 S. W. 1098, 1100; Stiles v. Hawkins (Tex. Com. App.) 207 S. W. 89, 95; Phillipson v. Flynn, 83 Tex. 580, 19 S. W. 136; Crump v. Andress (Tex. Com. App.) 278 S. W. 422, par. 2.

The appellees insist that even if it be conceded that John Wiggins was not a son of Jacob Wiggins and did not own any interest in the property, since he actually recovered judgment against Emma Holmes for an undivided interest in the property with an order of partition thereof and afterwards deeded the interest so recovered by him in the property to Emma Holmes, this in itself was, as a matter of law, such an overt act as to start...