57 S.W. 943 (Tex. 1900), Nehring v. McMurrian

Citation:57 S.W. 943, 94 Tex. 45
Opinion Judge:[94 Tex. 48] WILLIAMS, J.
Party Name:NEHRING et al. v. McMURRIAN et al.
Attorney:[94 Tex. 46] David H. Hewlett, Geo. F. Pendexter, and Geo. E. Shelley, for plaintiffs in error. [94 Tex. 47] T. W. Gregory, Geo. S. Walton, and M. C. Granberry, for defendants in error.
Case Date:June 25, 1900
Court:Supreme Court of Texas
 
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Page 943

57 S.W. 943 (Tex. 1900)

94 Tex. 45

NEHRING et al.

v.

McMURRIAN et al.

Supreme Court of Texas

June 25, 1900

Error to court of civil appeals of Third supreme judicial district.

Action by Victoria McMurrian and others against Fritz Nehring and others. From a judgment for plaintiffs, affirmed by the court of civil appeals (53 S.W. 381), defendants bring error. Reversed.

[94 Tex. 46] David H. Hewlett, Geo. F. Pendexter, and Geo. E. Shelley, for plaintiffs in error.

[94 Tex. 47] T. W. Gregory, Geo. S. Walton, and M. C. Granberry, for defendants in error.

[94 Tex. 48] WILLIAMS, J.

The defendants in error. who were plaintiffs, brought this suit to recover an interest in the land sued for, claiming that such interest had been inherited from Peter Conrad, the original grantee, by his nephew, Frank Conrad, and that, upon the [94 Tex. 49] death of Frank Conrad unmarried and without issue, it had been inherited from him by his mother, Mary, and upon her death had been inherited by plaintiffs, her brother and sisters. There was no direct evidence of

Page 944

the death of either Frank Conrad or his mother, but plaintiffs undertook, by proof that they had both disappeared, and had not been heard from for more than 7 years, to raise the presumption (1) that Frank Conrad had died without issue before his mother, and (2) that the latter had subsequently died. Their evidence tended to show that Frank Conrad, then 14 to 16 years of age, was last heard from in 1868, since which time those of his relatives and friends who would most probably have received intelligence of him had not heard of his existence, after due inquiry, and that his mother was last seen alive in 1878, since when nothing further had been heard of her. The verdict of the jury was in plaintiffs' favor upon both propositions, and the sufficiency of the evidence to authorize the finding is not questioned. The defendants adduced evidence of a witness, which, if true, proved that Frank Conrad was seen alive as late as 1893, but this the jury must have found to be unworthy of credit. The assignments of error are based upon the refusal of a requested instruction and the exclusion of evidence by the trial court. The refused instruction was as follows: 'The plaintiffs are not entitled to recover in this cause unless you believe from the evidence that Frank Conrad is dead, and, further, that at the time of his death he did not leave a surviving wife, child, or children, or the descendants of either. You are further instructed that you are not authorized, in the absence of evidence, to presume that said Frank Conrad did not leave a surviving wife, child, or children, or the descendants of either; and unless there has been evidence offered tending to establish the fact that at the death of said Frank Conrad, he did not leave a surviving wife, child, or children, or the descendants of either, you will find for the defendants.' A witness named Achee testified that in 1889 he knew a man named Frank Conrad, who lived in East Baton Rouge parish, La., stating approximately his apparent age, in connection with which defendants offered the further testimony of the witness that Conrad stated to him that he was born at Woodville, Miss.; that his father's name was Fred Conrad, and his...

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