15 S.W. 682 (Tex. 1891), Fowler v. Simpson

Citation:15 S.W. 682, 79 Tex. 611
Opinion Judge:[79 Tex. 613] HENRY, J.
Party Name:FOWLER et al. v. SIMPSON.
Attorney:[79 Tex. 613] Adkins & Green, for plaintiffs. [79 Tex. 612] Foard, Thompson & Townsend, for defendant.
Case Date:February 17, 1891
Court:Supreme Court of Texas

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15 S.W. 682 (Tex. 1891)

79 Tex. 611

FOWLER et al.



Supreme Court of Texas

February 17, 1891

Appeal from district court, Colorado county.

[79 Tex. 613] Adkins & Green, for plaintiffs.

[79 Tex. 612] Foard, Thompson & Townsend, for defendant.

[79 Tex. 613] HENRY, J.

This was an action of trespass to try title. The tract of land in controversy is composed of two contiguous surveys of 640 acres, each patented to Samuel Fowler. The defendants pleaded not guilty, and the statute of limitations of five years. The cause was tried without a jury, and judgment was rendered for the plaintiffs for an undivided one-half interest in the land. Both parties perfected appeals, and assign errors. [79 Tex. 614] The court filed the following conclusions of fact: 'The court finds that the two tracts of 640 acres each were granted to one Samuel Fowler in July, 1841; that Sam Fowler died in 1862, leaving as his sole heirs James Burton Fowler and John Fowler, two brothers of the said Sam, and that John Fowler died in 1881, leaving as his sole heir at law his brother, James Burton, who conveyed the land in controversy to the plaintiffs herein by deed dated May 28, 1889, and that this suit was instituted by them on the 7th day of September, 1889. (2) Also that John Fowler was in possession of the land, by his agent, one Kinchler, at the time of his death; that Kinchler resided on the land by virtue of and under a written contract, dated August 15, 1879, in which he was to hold possession until the 1st day of January, 1884, as the agent or tenant of said John Fowler; and that in 1881 the said Kinchler, while still in the

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possession of the land, agreed to hold the same as the tenant of defendant, Simpson, and afterwards, on the 10th day of March, 1884, executed and delivered to defendant, Simpson, a written instrument or acknowledgment of his tenancy, and that his wife now holds possession of the land as tenant under said agreement and by virtue thereof. (3) Also that the defendant, Simpson, purchased the 1,280 acres at tax-sale made by Toliver, who was the state and county collector of texes, by deeds dated in 1878 and 1879, and that the description of the land in said deeds was amended in a deed date October 20, 1879, which deeds convey to Simpson the interest of John Fowler. (4) Also that Simpson recovered a judgment in the district court of Colorado county at its March term, 1884, in a suit brought by him against the heirs of the said John Fowler; that the judgment recited that the defendants were duly cited, but made default; that, although the judgment contains that recital, the citation on file shows that the citation was only published for four consecutive weeks, and the affidavit on file only states that the residence of the heirs is unknown. The judgment is dated in March, 1884. (5) Also that defendant Simpson has paid the state and county taxes on the 1,280 acres each year since and including the year 1879 to the present date.'

The defendant, Simpson, as appellant, assigns as error a ruling of the court in permitting John J. Fowler, one of the plaintiffs, to testify to the declarations of his father, James Burton Fowler, that he was the surviving brother and only heir of Sam and John...

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