Grosholz v. Newman,
88 U.S. 481 (1874)

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U.S. Supreme Court

Grosholz v. Newman, 88 U.S. 21 Wall. 481 481 (1874)

Grosholz v. Newman

88 U.S. (21 Wall.) 481


1. A mere intention to make a lot adjoining one on which a man and wife have their dwelling -- the two lots being separated only by a small alley -- a part of a homestead, and the subsequent actual building of a kitchen on such adjoining lot, will not make that lot part of the homestead within the laws of Texas if, before the building of the kitchen, the husband, then owner of the lot, have sold and conveyed it to another person.

2. Where adverse possession is relied on to give title, and it is proved that such possession began "in the summer" of a certain year and ended "on the ___ day of ___" in the tenth year afterwards (ten years making the bar), the title is not made out, especially in a case where indications lead to the conclusion that it ended in the spring of the tenth year.

3. Where one having a title to two lots purchased from the state, but for which he has as yet no patent, makes a deed of them in form absolute to another, and then subsequently twice mortgages them, with a third lot which he owns to that other, the grantee of that other is not estopped by his grantor's acceptance of the mortgages of the three lots, to assert ownership, under the deed in form absolute, of the two.

4. Where a complainant in equity wishes to rely on the fact that a deed, in form absolute, was in reality a mortgage, which has been paid, he must allege the fact in his bill.

By the Constitution of Texas, on the subject of "The Homestead," it is ordained that "the owner thereof, if a married man, shall not be at liberty to alienate the same unless by the consent of the wife," &c. [Footnote 1]

With the above-mentioned provision of the Constitution of Texas in force, one Gustavus Kirchberg, a blacksmith, and Catherine, his wife, went from Pennsylvania, A.D. 1849, to the City of Austin, Texas, and immediately bought lot 6 in block 111 in the city named. On the east or Avenue side of the lot, they soon built a smith's shop, and on the extreme back or rear edge of the lot they put their dwelling house. See the diagram on the following page.

Page 88 U. S. 482

In this same block 111 were lots 7 and 8; these lots being separated from lot 6 by an intervening alley 20 feet wide.


In June, 1850, Mrs. Kirchberg, writing to her sister at Philadelphia, said:

"Our affairs are good, and now we are building. We have a lot in the main street in Austin, and we will buy the adjoining one for a garden. Our dwelling will be finished in four weeks. The well is also dug and there is good water. The shop has also been commenced, so we are now busily engaged until we have everything in order."

In December, 1850, Kirchberg purchased from the state the two lots 7 and 8, above described; his purchase being entered upon the state records, but he getting no patent for the lots.

In November, 1851, without his wife's consent, he executed to one Wahrenberger, for the consideration, as expressed, of $150, a conveyance in form absolute of these lots 7 and 8.

After this deed was made -- that is to say in the summer of 1852 -- Kirchberg and his wife erected upon the extreme rear or east end of lot 7 their kitchen, which was thereby placed just in the rear of their dwelling and with nothing but the

Page 88 U. S. 483

twenty feet wide alley intervening. And in 1853, a tenant of Kirchberg erected on lot 8 a house used by him as a dwelling for some months, and afterwards by Kirchberg as a brewery, he having by this time given up the trade of a blacksmith for the business of brewing. The diagram explains the matter of places.

In June, 1856, the husband and wife conveyed lots 6, 7, and 8, to one Costa, in trust, to secure the payment of a promissory note of $435, of Kirchberg's, then held by the Wahrenberger above-named.

And on the 1st of March, 1860, they executed another deed of the same lots to the same Costa, to secure a note of Kirchberg's then held by Wahrenberger for $496. This second trust deed, it was not denied, was in cancellation of the debt which was secured by the former one, that of June, 1856.

By the terms of both these trust deeds, Costa had power to sell all the lots if the notes were not paid; but if they were paid, the deeds were to become void. Both notes were paid.

Kirchberg having died prior to 1861 without issue, all his property vested in his wife, and she having died sometime in 1862, her property passed to her heirs -- persons, as was alleged, named Grosholz.

Wahrenberger subsequently sold the lots 7 and 8 to one Newman, and the family Grosholz alleging heirship, now, May, 1870, filed a bill against Newman in the court below to have the deed of November, 1851 (the deed of lots 7 and 8 executed by the husband alone), set aside as having covered in terms lots 7 and 8 (which were alleged in the bill to be a part of the homestead); as having really conveyed nothing, but as being nevertheless a could on the true title.

A patent from the state issued in 1869, "to the heirs of Gustavus Kirchberg," and on this the family Grosholz had previously brought an action at law (trespass to try title), which was determined against them, and about the identity of which with the present case some evidence was given below.

Page 88 U. S. 484

At the time of her death in 1862, Mrs. Kirchberg was in possession of lots 7 and 8, and apparently either her husband or she had been continuously and notoriously so since the summer of 1852, when the kitchen was built on lot 7.

The bill alleged that by the laws of Texas, the husband could not convey any part of the homestead without the wife's assent; that the assent of the complainant, the wife of Kirchberg, had not been given to his conveyance in November, 1851, of the lots 7 and 8; that the homestead was composed of all three lots 6, 7, and 8 alike; that previous to the purchase of lots 7 and 8, the said Gustavus and Catherine Kirchberg had no kitchen or other tenement upon lot 6 or elsewhere, excepting their dwelling at the extreme rear edge of lot 6 as aforesaid, and that the purchase and acquisition of lots 7 and 8 were made with the intention and for the express purpose of designating and using them as parts of the homestead.

The bill further averred:

That "down to the death of the said Catherine, on or abut the ___ day of _____, 1862," her husband or herself from the summer of 1852 had open, notorious, and continued adverse possession of lots 7 and 8:

That by the deeds of trust and the facts connected therewith, it appeared that Wahrenberger for many years after the making of the absolute deed to him, and notwithstanding it, fully recognized the absolute right and title of the husband and wife to those two lots, and dealt with them about the lots as owners, receiving for his benefit the deeds executed to Costa by them for his benefit, and that he was therefore estopped from setting up title under the deed of November, 1851, absolute on its face. But the bill nowhere charged that the deed was a mortgage, nor offered to redeem as if it were, nor alleged that it had as a mortgage been paid.

The answer declared ignorance of the intention or purpose with which the purchase and acquisition of lots 7 and 8 had been made; asserted on belief and information that part of the purchase money for them was paid by Wahrenberger,

Page 88 U. S. 485

though the entry of purchase was in Kirchberg's name alone; asserted the bona fides and legal efficacy from its date in November, 1851, of the deed of that date from Kirchberg to Wahrenberger conveying them to the latter, and of the mesne conveyances from Wahrenberger to the defendant, denied that either lot 7 or lot 8 was ever really part of the homestead; denied that lot 7 was ever even used as part of the homestead till 1852, after the making of the deed to Wahrenberger; denied that lot 8 was ever even used as part of the homestead at all. Admitted the death of Mrs. Kirchberg "on the ___ day of _____ A.D. 1862, intestate;" did not admit the heirship of the complainants, and finally denied the effect of the trust deeds asserted by the complainants.

As the adverse possession was not admitted to have begun prior to the summer of 1862, its value as a bar (which in Texas is ten years), depended, of course, on the fact whether Mrs. Kirchberg, who, it was admitted, died "on the ___ day of _____ A.D. 1862," died prior to the summer of that year. There was no specific evidence to that point. However, there were several complainants, and it was, of course, necessary to prove their heirship to Mrs. Kirchberg at the time of her death. Depositions of different parties were taken to prove the heirship of the complainants; this being one of the complainants' interrogatories:

"If the wife of Gustavus Kirchberg had in the spring of 1862 any father, mother, or brothers and sisters, or descendants of deceased brothers or sisters, state fully who all such kindred were, and show the degree of relationship between them and her. State also the residence of each of such kindred."

And the heirship of the complainants in the spring of 1862 seemed to be established.

The court below dismissed the bill, and the complainants brought the case here.

Page 88 U. S. 486

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