55 Tex. 273 (Tex. 1881), 4347, S. Shultz & Bro. v. Lempert

Docket Nº:4347.
Citation:55 Tex. 273
Opinion Judge:GOULD, ASSOCIATE JUSTICE.
Party Name:S. SHULTZ & BRO. v. W. S. LEMPERT ET AL.
Attorney:Walton, Green & Hill, for appellants. Hancock & West, for appellees.
Case Date:May 20, 1881
Court:Supreme Court of Texas
 
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Page 273

55 Tex. 273 (Tex. 1881)

S. SHULTZ & BRO.

v.

W. S. LEMPERT ET AL.

No. 4347.

Supreme Court of Texas.

May 20, 1881

APPEAL from Presidio. Tried below before S. P. Carpenter, special judge.

The statement of the cause made by appellant being approved by counsel for appellee, and found substantially correct, is in the main adopted.

Suit brought by appellants to quiet their title and possession to and of two and one-half acres of a tract of one hundred and sixty acres granted to Francis Duke; and, if they could not obtain such relief, they then asked for judgment for the value of the permanent improvements made by them thereon in good faith. The suit was brought against Wm. S. Lempert and Mrs. Paula Robinson, who, it was alleged, set up title thereto.

The defendants answered the petition, setting up a claim in behalf of Mrs. Robinson and the children of Calvin Robinson to the one hundred and sixty acres granted to Duke. They alleged that the plaintiffs bought with notice of that claim; they asked that Duke be made a party, that they have judgment for the possession of the one hundred and sixty acres, and that Duke's patent be cancelled, or that they be subrogated to his rights.

To this plea in reconvention the plaintiffs pleaded not guilty.

Duke was not made a party to the suit, nor were the heirs of Calvin Robinson made parties.

On the 10th of April, 1880, the parties, by agreement, withdrew the cause from the district court and submitted it to arbitration, providing for an appeal and notice of appeal. To this agreement the heirs of Calvin Robinson were parties.

The cause being heard before the arbitrators, and they being unable to agree, an umpire was chosen, whereupon they returned their award:

1. That Duke had no just title to the land.

2. That the plaintiffs did not purchase in good faith.

3. But there should be no claim for rents against them.

On motion of the defendants the award was made the judgment of the court, the judgment being that plaintiffs take nothing by their suit, and rendered in favor of W. S. Lempert, Paula Robinson, G. Robinson, Eliza Robinson, Robert Robinson and Flora Robinson (the administrator, wife and children of Calvin Robinson), a judgment cancelling the patent to Duke, and that those persons as defendants recover the title and possession of the two and one half acres claimed by plaintiffs (giving the boundary), and all improvements, and be quieted in the title and possession of the same, and that they have their writ of possession.

It would seem that appellants bought with full knowledge of the state of the title. It is to be regretted that the testimony affecting this point is too voluminous for insertion.

Walton, Green & Hill, for appellants.

I. Francis Duke, not having...

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