Zapp v. Strohmeyer

• Decision Date: 21 January 1890
• Citation: 13 S.W. 9
• Parties: ZAPP <I>v.</I> STROHMEYER.
• Court: Texas Supreme Court

13 S.W. 9

ZAPP

v. STROHMEYER.

Supreme Court of Texas.

January 21, 1890.

Appeal from district court, Fayette county; H. TEICHMUELLER, Judge.

W. S. Robson and A. J. Rosenthal, for appellant.

HENRY, J.

On the 12th day of March, 1884, John Strohmeyer, appellee, and his wife, owned and lived upon 189 acres of land in Fayette county, Tex., and same was their homestead. On the 21st day of March, 1884, the wife brought an action for divorce and partition of property. A divorce was granted, and said real estate, together with their personal property, was partitioned, the wife receiving ____ acres of land jointly owned by them, and the appellee received the 62 acres of land in controversy in this suit. On the 27th day of January, 1887, an execution for costs in said suit was sued out under said judgment against appellee, and placed in the hands of the sheriff, and by him levied upon the land in controversy, and same was properly sold. Appellant acquired the title claimed by him under that sale, and brought this suit in the form of an action of trespass to try title to recover the property.

That portion of the land that the family had resided on was allotted to the husband in the partition of the homestead, and he never changed his residence from it. At the time the divorce was decreed the parties had minor children residing at home as members of the family. The decree of the court did not give the custody of the children to either of the spouses. With the exception of one, the children remained with their mother. One son, then about 15 or 16 years of age, works about the neighborhood, and sometimes visits his father, but does not make his house his home. In giving his conclusions of law, the district judge used the following language, which we fully approve: "Whether a divorced husband is the head of a family does not depend on the actual and constant presence of his children at his house. When, as in this case, the children reside temporarily with their mother, the father does not renounce his character as head of the family by an acquiescence in such disposition of its members. The natural and legal tie existing between the father and his children continued unimpaired. Many causes were liable at that time to arise which must have occasioned the restoration of even perfectly normal relations between the father and his children. From their own choice, or at the instance of their father, the children might have resumed their residence at the old home...