Steddum v. Kirby Lumber Co. , 1912 Tex. App. LEXIS 1258 ( 1912 )

On Motion for Rehearing.

[6] The very able argument filed by appellant’s .counsel on motion for rehearing has convinced us that two of the grounds upon which our judgment affirming the judgment of the court below was based are not tenable. There is evidence in the record sufficient to sustain a finding that the land certificate was sold by Samuel Steddum after his divorce from his wife, Phoebe Steddum. This evidence, which consists of a recital, in the duplicate certificate issued to Samuel Steddum on December 19, 1843, that the original certificate “has been lost, as appears by the oath of said Samuel Steddum,” was not called to our attention by appellant’s brief; and, in our former opinion, we assumed that the statement in appellee’s brief that there was no evidence as to when the certificate was sold by Samuel Steddum was borne out by the record. The fact that at the. time this duplicate certificate was issued, which was two years after the divorce, Samuel Steddum made oath 'that the original certificate was lost, in the absence of any evidence to the contrary, would sustain, if it does not compel, the finding that said certificate had not been previously sold by said Steddum. We also erred, in our former opinion herein, in holding that, upon the evidence in the record, it should be conclusively presumed, from lapse of time, that the certificate was sold by the husband for the purpose of paying community debts. The evidence is sufficient to sustain such finding; but the jury might have found otherwise,' and the court could not properly have instructed a verdict for the defendant upon that issue.

We adhere to our former conclusion that the court properly instructed the jury to return a verdict for defendant becaus,e the evidence failed to show what interest in the land plaintiff was entitled to recover. It is not contended in the argument on motion for rehearing that, under the pleadings in this case, plaintiff could recover without showing prima facie that he owned the undivided one-half of the land claimed in his petition, or some definite interest less than one-Lalf. The cases of Baldwin v. Goldfrank, 88 Tex. 261, 31 S. W. 1064, and Davidson v. Wallingford, 88 Tex. 619, 32 S. W. 1030, are, we think, conclusive upon this point.

Appellant’s contention is- that it was not necessary for plaintiff, in order to make a prima facie showing of title to an undivided one-half of the land, to prove that Mrs. Phoebe Steddum did not remarry after her divorce from Samuel Steddum, and died without other issue than her three children by Samuel Steddum. We quote from the argument of counsel: “If, under the law, her interest in the community estate was forfeited and vested in tlie children, her remarriage and the birth of other children could not reinvest the estate in her. If that were true, then, having dishonored the marriage bed and thereby forfeited her interest, she could on the morrow marry her paramour and thus reacquire her forfeited estate, or vest same in the fruit of such marriage. That cannot be the law. No, her adultery, if held to be established by the divorce judgment, forfeited her interest in the community estate; and, by operation of law, same vested in their ■,sons. This forfeiture was absolutely final ■and endured to the end of time, and ‘as long as men have passions, and as long as the earth has woes.’ And it follows, as certainly and as unerringly as a demonstration in Euclid, that whether Mrs. Phoebe Sted-dum lived or died, was married or single, had issue or remained more barren than Sarah, it could not and does not affect the rights of this appellant in the slightest degree. It must follow, too, unerringly and certainly, that if the wife’s community estate vested, as seems undoubtedly to be the law, in the children, then we have proven heirship to the entire community interest derived through the wife, according to the strictest rule ever laid down by any court.” We think it clear that in this argument appellant’s counsel entirely overlook the fact that, if Mrs. Sted-dum remarried after her divorce and had other children as the fruit of such marriage, these children would bear the same relation to her children by Samuel Steddum as does the plaintiff, and would inherit equally with plaintiff the estate of their half-brothers, the three children of Samuel and Phcebe Sted-dum.

It is certainly true that the remarriage of Mrs. Steddum would not reinvest her with the estate which she had forfeited by her adultery. But her adultery could not work corruption of blood or in any way affect the capacity of children that were thereafter born to her to inherit property. If the forfeiture was in favor of her children 'by Samuel Steddum, upon the death of these children after the death of their father and mother, and without issue, any child of Mrs. Steddum by a second husband would inherit from them equally with plaintiff.

We think the motion for rehearing should be overruled, and it has been so ordered.