Jenks v. McGowan

Opinion of the court by McAtee, J.: It is conceded that Thomas H. Jenks has no interest in the land in controversy. It appeared from the testimony of Agnes D. Jenks that she was married to Thomas H. Jenks, in 1870, in New Orleans; that at the time he came to Oklahoma, in April, 1889, he started from Kansas City, Mo., where he left his wife, Agnes D. Jenks, who protested against his coming here, and declined and refused to come to the Territory and make her home with him; that he was an ex- United States naval officer and sailor; that he thought it would be well for him to acquire some land.for his son, and that he .took advantage of his right as a naval officer to “pre-empt” some land, and that he came to the Territory for that purpose; that she sent him money from time to time, to- the amount of $600, while he lived upon the land in controversy, to aid and'sustain him during a period when there was no- revenue from the land; that she subsequently, after he left the land, supplied him with $300. Upon cross-examination she testified, as follows: “Question. And he came down here, notwithstanding your persuasion? Answer. Yes, sir. *310 “Q. You didn’t come dowp with him? A. Oh, no. 1 “Q. You never have lived here at all? A. Yes, I have passed through here. “Q. I mean, you never lived here; you always claimed your residence to be in New Orleans? A. Yes; I have Jived here as much as two months, at a time. “Q. When he came here in April, 1889, did your husband s-ay then that he ha.d a townsite scheme in contemplation? A. He was no business man, and never' did have a -scheme in any way. “Q. Well, he had it in his mind, didn’t he? A. Oh, no. It was other people that had it on the brain. He is a good sailor, but a very poor business man. ',“Q. And you didn’t give him any of this, money in consideration of this place, or any part o.f the place? A. Why, yes, in consideration of my son; he was down here all the time pre-empting that land for the benefit of my son, and that was consideration for me. And then I paid him this $300 when he started for Central America.” The evidence showed that the deed to Agnes D. Jenks was made on the 16th day of November, 1895. She says that she gave him $300 when lie was goinjá to. Nicaragua. But the evidence shows that the deed was made November 18, 1895, and that the money, $300, if paid when he went to Nicaragua, was not paid until the following spring, to-wit: the spring of 1896, some months after the execution of the deed to. her, while the testimony as to her payment to him of the various sums, claimed to amount to $800, shows that they were made as gifts, long prior to the execution of the deed to her. and there is no evidence that they were at the time intended as loans to her husband. *311 This evidence was submitted to- the court, without a jury, and the finding of the court was that “the warranty deed from the said defendant, Thomas H. Jenks, to the defendant, Agnes D. Jenks, was made without any valuable consideration, and the said defendant, Agnes D. Jenks, is not an innocent purchaser for the value of said described premises.” The court heard the testimony, saw the witnesses, and had the opportunity of determining from their appearance, deportment and manner of giving their testimony upon the witness stand, who should be believed and who should not be believed. And it has been repeatedly held by this court, that where evidence was given in a cause reasonably tending to support the conclusion of the court, that this court will not disturb the finding of the trial court. (Nat’l. Bank of Guthrie v. Earle, 2 Okla. 57; Light v. Canadian Co. Bank, 2 Okla. 542.) The statutes of Nebraska were in force in 1890. They provide that: “The widow of any deceased person shall be entitled to her distributive share of all the land-s whereof her husband was seized of an estate of inheritance at -any time during the marriage, unless she joins in a deed of conveyance with-her husband or is otherwise lawfully barred.” (Statutes of Nebraska, 1889, p. 404.) And when the deed of 1892 was made by Jenks, the Statutes of 1890, section 1716, p. 385, were in force, which provides that: “Married persons may convey real estate other than the homestead, without the con currence of the husband or wife, as the case may be, but the title thereby conveyed shall be subject to the in *312 choate right of inheritance, held by the husband or wife, not joining in the deed, if he, or she, survives the one executing the deed.” There is no evidence in the case to sustain a claim that the property in controversy was the homestead of Thomas H. Jenks. It shows- the contrary. It shows that Agnes D. Jenks protested against his coming to Oklahoma; did not see him again for two years, resided in New Orleans, where -she was a correspondent of the New York Tribune, and other papers and that Jenks resided alone on the claim until 1894, the object of his residence being to prove up a claim for his son, and that she has passed through the country and had spent “as much as two months at a time with him.” These facts preclude any claim of homestead. Neither is there any claim here of right upon the condition of widowhood. There is no contention here upon the estate of inheritance of a deceased husband. The judgment of the court below will be-affirmed. All of the Justices concurring.