Zimpelman v. Robb

• Decision Date: 04 May 1880
• Docket Number: Case No. 4091.
• Parties: GEO. B. ZIMPELMAN ET AL. v. THOS. ROBB ET AL.
• Court: Texas Supreme Court

53 Tex. 274

GEO. B. ZIMPELMAN ET AL.

v.THOS. ROBB ET AL.

Case No. 4091.

Supreme Court of Texas.

May 4, 1880.

APPEAL from Travis. Tried below before the Hon. E. B. Turner.

Suit brought August 17, 1875, by appellee Zimpelman and W. W. Briggs, in trespass to try title against the appellees, Robb & Taylor, for 1,712 1/2 acres of the William Lewis, Sr., league and labor of land, in Travis county. Afterwards, during the pendency of this suit, Briggs died; and his wife, who had administered on his estate in Texas, made herself a party plaintiff. On the 28th day of October, 1878, the appellee Dimmitt was made a party defendant by amended petition.

On the 6th of May, 1879, the present appellant filed an amended second supplemental petition against the appellees, to try title to the 1,712 1/2 acres of land. By way of replication to the answer of defendants below, they set up that the property sued for was the separate property of Singleton J. Thompson, their vendor; that he never intermarried with Elizabeth Thompson, defendant's vendor; that Zimpelman and Briggs, when they purchased the land in controversy, had no knowledge that Thompson had abandoned his wife; that it was not necessary for Elizabeth Thompson to sell the land in controversy at the time she sold it, to procure necessaries for herself and family; that her family at the date of sale consisted of herself and William C. Thompson, her son, then a grown man, with whom she lived about as she lived before abandoned by her husband; that W. W. Briggs and Zimpelman were innocent purchasers of the land from Singleton Thompson; and that they paid for it at the time they bought it, to wit, the 30th of July, 1875, the full contract price, without notice, actual or constructive, of defendant's title or claim.

The defendants, in an amended answer, set up that Singleton J. Thompson and Elizabeth Thompson were married and had been married for a long time prior to January 1, 1867; that at that date they owned the land in controversy as community property; that in 1867 Thompson abandoned his said wife without cause; that he left her in destitute circumstances, and never afterwards made any provision for her support, and that in a suit instituted before he left his wife, in the district court of Travis county, the title to the land in controversy was, on the 3d of July, 1872, adjudged to be in Thompson; that about the 17th of May, 1872, Mrs. Thompson, being the lawful wife of Singleton Thompson, in destitute circumstances and unprovided for in any way by her husband, who had abandoned her, did sell to Emzy Taylor the William Lewis, Sr., league and labor of land to procure necessaries for her support; that Taylor, on the 28th of September, 1873, conveyed to John Hamby 100 acres of land out of the William Lewis, Sr., league and labor. That Hamby, on the 16th of September, 1874, sold that 100 acres to defendant Thomas Robb.

Robb set up his 100 acres of land by metes and bounds, and disclaimed as to the balance sued for.

J. J. Dimmitt filed an answer May 7, 1879, in which he pleaded not guilty.

Defendants filed a trial amendment, in which they alleged that Thompson and Elizabeth Crawford lived together as husband and wife before the issuance to him of the certificate to land, which he traded for the land in controversy, and that the certificate was issued to Thompson by the state of Texas by reason of his living and cohabiting with Elizabeth Thompson as his wife. They further denied all the allegations of plaintiff's second supplemental petition, filed May 6, 1879.

The case was tried by a jury. They found for all of the defendants under the instructions of the court. There was a judgment for defendants for the land in controversy.

The court charged the jury that if Elizabeth Thompson was the wife of Singleton J. Thompson, and the land in controversy was their community property, and he abandoned her leaving her in destitute circumstances without the necessaries of life, and without making any provision for her support, and that the land in controversy was all she had or they had out of which to support herself, that she had authority to sell the land, and her deed to Emzy Taylor (under whom the other defendants claimed) conveyed to him all the right and title that Singleton J. Thompson had in the land at the time it was executed.

This charge was excepted to by appellants on the ground that a married woman, when abandoned by her husband, could only sell sufficient of the community property to supply her wants and to enable her to administer the community estate.

The appellants asked a charge, which was refused, to the effect that a married woman could only sell sufficient of the community property to supply the necessary wants of herself and family, and to carry on and manage the community property.

Taylor, in the lifetime of Singleton Thompson, bought the land in controversy, and took a deed from Elizabeth Thompson (who claimed to be the wife of Singleton Thompson) and her son William, on May 17, 1872. Defendants held under Taylor. The deed to Taylor was filed for record in Travis county, where the land is situated, May 25, 1872, and recorded on the 4th of June, 1872.

Singleton J. Thompson is the common source of title of appellants and appellees. There was a deed from him to appellants to the land in controversy, July 30, 1875, which was filed for record August 2, 1875, and recorded in Travis county. They paid him for the land when they bought it, and there was no conclusive evidence that they had at that time actual knowledge of the deed to Taylor from Mrs. Thompson and son.

They knew Thompson was married and living in eastern Texas with another woman.

Zimpelman telegraphed to the district clerk of Travis county, who had charge of the record of deeds, before the purchase by appellants from Thompson, and he replied that the records showed no deed from Thompson to the land.

The court charged the jury that if the facts existed which clothed Mrs. Thompson with power to sell the land in controversy, and Taylor placed his deed from her on the records of Travis county before the plaintiffs purchased from Singleton J. Thompson, it was notice to the world that Taylor had bought the land, and that they would find for the defendants.

Appellants excepted to this charge on the ground that the record of Taylor's deed was not notice of his purchase to them.

The appellants asked a charge that if neither Zimpelman nor Briggs had actual notice of the deed from Mrs. Thompson and her son to Taylor to the land in controversy, at the date of their purchase of the land, and that they paid the purchase money for the land at the date of their purchase from Thompson, that then the record of the deed from Mrs. Thompson and her son to Taylor was not notice to plaintiffs. This charge was refused by the court.

Appellants pleaded that they were innocent purchasers of the land in controversy, without notice of the title of appellees, or of the abandonment of Mrs. Thompson by Singleton J. Thompson. That they paid for the land at the date of their deed and purchase.

Other facts are apparent from the opinion.

Carleton & Robertson and John B. Rector for appellants.

I. A married woman, when abandoned by her husband, can sell enough of the community property to support herself and family, and to manage and administer the remainder, and no more. Pasch. Dig., art. 4642; Wright v. Hays, 10 Tex., 131;Cheek v. Bellows, 17 Tex., 617;Fullerton v. Doyle, 18 Tex., 13;Forbes v. Moore, 32 Tex., 199.

II. A deed duly recorded is notice only to subsequent purchasers claiming under the same grantee. Pasch. Dig., arts. 4988, 4989, 4994; Baldwin v. Richardson & Co., 33 Tex., 33; 3 Washburn on Real Property, 319; Wade on Notice, secs. 205, 206, 207, 213, 223, 684; 4 Kent, 179, 180; Crokett & Risque v. Maguire, 10 Mo., 35;10 Ohio, 83;7 Watts, 382; Tilton v. Hunter, 24 Me., 31; Bates v. Norcross, 14 Pick., 231.

III. A headright certificate for a league and labor of land acquired by a man and woman unmarried, by virtue of their cohabitation as man and wife in Texas, and the lands purchased therewith and the title taken in the name of the man, cannot be wholly disposed of by the woman when abandoned by the man and left in destitute circumstances.

Hancock, West & North for appellees.

I. A married woman, when abandoned for a long period of time by her husband, and left in destitute circumstances without means of support, can, for her support and maintenance, sell so much of the community property as she may deem necessary and sufficient for her support and maintenance; and her deed, made under such circumstances in good faith for the purposes above named, will vest a good title in the purchaser without the signature of her husband to the deed. See cases under this head cited by appellant. Carothers v. McNese, 43 Tex., 224.

II. The court was correct in charging the jury that the registration of the deed from Elizabeth Thompson and W. C. Thompson to Emzy...