William Hensley, Jr., et al. v. John H. Lewis et al., 82 Tex. 595

STAYTON, Chief Justice. This action was brought by appellants, the children of William Hensley, Sr., and his wife Emma, T., to recover the one-half of the land in controversy, which they claim by inheritance from their mother. The cause was tried without a jury, and the conclusions of fact given by the judge were as follows: “1. On the 29th day of October, 1864, William Hensley, Sr., bought of Tabor and wife the land in suit, and received a deed from said Tabor and wife; and said William Hensley, Sr., is the father of these plaintiffs. “2.

At the time said William Hensley, Sr., received the deed from Tabor and wife he was a married man, his wife being named Emma T. Hensley; and the said Emma T. Hensley is the mother of these plaintiffs. “3. In 1867 or 1868 the said Emma T. Hensley died, while living on the place or land in suit; the said William Hensley, Sr., having separated from her and being in the State of Kansas. “.4.

Thereafter the said William Hensley, Sr., married his second wife, whose name was Lucinda Hensley; and afterward, on the 11th day of January, 1870, sold the land in suit to one Hickman Hensley and gave him deed, being joined in the said deed by his wife Lucinda Hickman. “5. On the 11th day of November, 1872, Hickman Hensley and wife sold the said land in suit to the defendant John H. Lewis and one James Hogel, and John H. Lewis since bought out and now owns both interests in the land. “6.

Lewis and Hogel paid $2500 for the land, its full value, and supposed that Lucinda Hensley was the first and only wife of William Hensley, Sr.; that they had no knowledge that William Hensley, Sr., had had a former wife; that they paid the money in good faith, without any notice of any defect in the title to the land in suit.” Conclusions of law: “That Lewis is an innocent purchaser for a valuable consideration in good faith of the land in suit without notice, and entitled in law to judgment.” Thereupon judgment was rendered against the plaintiffs.

The statement of facts shows more fully than does the sixth conclusion that defendants bought without notice of plaintiffs’ rights and without knowledge of facts that would make inquiry as to their rights a duty; and many of the assignments of error in effect claim that the court failed to find otherwise than was done upon some issues; and further, that there should have been some additional findings which counsel seems to think were important. Delivered December 18, 1891. The findings are all well supported by the evidence, and contrary conclusions would have been against it.

If counsel was of opinion that findings of fact should be made on which none were, this should have been requested; but it seems to us that the isolated facts on which it is urged the court should háve made findings were only such as the court was bound to consider in making the findings found in the record; and had the special findings which, in the second, third, fourth, and fifth assignments, it is claimed should have been made, been made in appellants’ favor, this court could not hold that the- facts thus found would have required different general findings on the vital issues of the case from those found in the record.

The court in the third finding of fact states, that William Hensley had separated from his wife at the time she died, and that she at the time of her death lived on the land in controversy; - and it is urged that in addition to the evidence to prove this fact the court should have permitted proof that the husband was living in adultery with another woman.

We do not see what bearing such evidence could have bn any issue in the case, for such a fact would not deprive the husband of right to his interest in the land or withdraw from him any of the evidences of his right, nor would it confer on the wife any property right she would have had if they had been living together, although it might have conferred upon her rights in reference to the management of the common property, or right even to dispose of it, which she would not have had but for her husband’s abandonment of her for a time.

Ho question arises as to what would have been the right of the wife in property acquired by her efforts while abandoned by the husband, for the property in controversy was acquired by the husband while they were living together. As before stated, the findings of fact were sustained by the evidence, which showed that appellees were bona fide purchasers, having no notice of the right of appellants nor knowledge of facts that would put them on inquiry, and having paid full value for the land. As such they were entitled to a judgment. Edwards v. Brown, 68 Texas, 329; Hill v. Moore, 62 Texas, 610; Pouncey v.

May, 76 Texas, 565; Wren v. Peel, 64 Texas, 380; Patty v. Middleton, this day decided. There being no error, the judgment will be affirmed. Affirmed.