Cockrell v. Curtis

HERRT, Associate Justice. This suit was brought by the plaintiff in error for the possession of a tract of land in Dallas County containing 145 acres, alleged to be the separate property of plaintiff’s deceased husband and her homestead. The plaintiff claimed the whole tract as a homestead and an undivided interest of one-third as heir of her husband. The defendant pleaded the statute of limitations of three years, and also that he held possession of the land for the children of the deceased husband of plaintiff by a former marriage, and that plaintiff did, several months before the death of her husband, without cause and contrary to his will, permanently abandon and live apart from him, and that she never afterward discharged her marital duties to him. The court sustained an exception filed by plaintiff to this plea of abandonment. The cause was tried by the court without a jury, and the judge filed the following conclusions of fact: “This suit was instituted on the 6th day of May, 1889: The defendant was then in actual, peaceable, and adverse possession of the land in controversy, holding the same for himself and the other children of Wesley Cockrell, deceased, as heirs of Wesley Cockrell, and had so held said land for more than three years prior to the institution of this suit, and during all of said time plaintiff had actual notice of said adverse possession.” *107 Delivered January 22, 1892. The conclusion of law was, that “plaintiff’s action was barred by the statute of limitations of three years.” Judgment was accordingly entered for the defendant. As Wesley Cockrell died intestate, his surviving wife (the plaintiff) inherited a life-interest of one-third in his estate. The defendant neither had title nor color of title to that interest, and the statute of limitations of three years has no application whatever to the case. This requires the reversal of the judgment upon the plaintiff’s appeal. The defendant in error assigns errror upon the judgment sustaining plaintiff’s exception to his plea of abandonment. We think that the court erred in sustaining the exception. From the record before us, it appears that the plaintiff is entitled to the possession and use of the entire tract as a homestead, unless she had forfeited it by a voluntary and unexcused abandonment of her husband before his death. In the opinion of this court in the case of Newland v. Holland, 45 Texas, 589, it is said, “That a wife who voluntarily, and without any just and reasonable cause, abandons and separates herself from her husband, and continues, in wanton disregard of her duties as a wife, to live separate and apart from him at the time of his death, is estopped and precluded from claiming the homestead rights given by the Constitution and statutes to the surviving wife, is not now an open question in this court.” Sears v. Sears, 45 Texas, 557. The judgment is reversed and the cause remanded. Reversed and remanded.