Abernathy v. Stone

• Decision Date: 16 June 1891
• Citation: 16 S.W. 1102
• Parties: ABERNATHY v. STONE.
• Court: Texas Supreme Court

16 S.W. 1102

ABERNATHY v. STONE.

Supreme Court of Texas.

June 16, 1891.

Commissioners' decision. Appeal from district court, Falls county; JOHN R. DICKINSON, Judge.

Goodrich & Clarkson, for appellant. J. A. Martin and Neal & Kettler, for appellee.

MARR, J.

This suit was instituted in the district court of Falls county, June 9, 1888, by the appellant against the appellee, to recover the title and possession of an undivided 866 acres in a large tract of land lying in Falls county, and patented to Henry Fantharp, by virtue of his headright certificate. The plaintiff claimed as a vendee of Fantharp, and the defendant as his sole heir. The plaintiff set up the facts constituting his right at length, and prayed to recover the land, and that title be divested out of the defendant and be vested in the plaintiff. The defendant filed various exceptions and demurrers to the plaintiff's pleadings, among which she excepted because it appeared from plaintiff's pleadings that his claim was stale, and barred by lapse of time. The court overruled all of the defendant's demurrers except the one alleging laches, which was sustained, and plaintiff's suit dismissed, from which the plaintiff appeals.

The plaintiff, in his original petition, states: On the 23d day of March, 1854, Henry Fantharp, the ancestor of the defendant, was the owner and in possession of a tract of 1,314 acres of land lying in McLennan county, Tex., which the plaintiff described by metes and bounds, which said tract of land was located and surveyed by virtue of his (said Fantharp's) headright certificate for one league and labor of land; and on said day said Fantharp, by his deed of conveyance of that date, a copy of which is made a part of plaintiff's petition, conveyed to the plaintiff 866 acres of said land by metes and bounds, which is described in said deed and petition. This deed is in the usual form, recites a consideration of $1,000 cash paid, and shows that the land was located by virtue of said Fantharp's headright certificate. The words of conveyance in the deed are: "Have this day, do by these presents, sell, alienate, convey, and quitclaim unto the said Abernathy, his heirs and assigns, forever, all and singular, the following described tract of land, to-wit." Then follows the description of the land, which concludes as follows: "And containing 866 2/3 acres of land; and all right, title, and interest which I have and devise to the above-described tract of land by virtue of the survey aforesaid, I sell, convey, and quitclaim unto the said Abernathy from me, my heirs and assigns, forever." That by virtue of said deed plaintiff says he became the owner of an undivided part of said land certificate, amounting to the quantity of land in said deed conveyed. That on ___ day of March, 1859, said Fantharp floated and removed from said land and other lands located by virtue of said certificate said land certificate, and by virtue of said certificate so floated and removed located and surveyed the tract of 2,322 acres of land lying in Falls county, which plaintiff describes by metes and bounds; and an undivided part thereof, amounting to 866 2/3 acres, he seeks to recover in this suit. That on August 10, 1868, a patent was issued to the heirs of Fantharp for said land. That said Fantharp is dead, and the defendant is his sole heir. Plaintiff alleges the defendant's forcible entry and ouster of plaintiff January 1, 1888. That he does not know where the balance of said certificate is located, and he prays that the defendant be required to disclose. He prays that plaintiff's title to 866 2/3 acres be established, and he be adjudged to be the owner of the same, and all title thereto be divested out of defendant and vested in plaintiff, and prays for partition and recovery of possession. The plaintiff, by trial amendment, alleged that he never knew that Fantharp had floated the certificate from the land in McLennan county till 1887; "that from 1868 to 1880 he lived near the defendant, and she never, and that neither Fantharp nor the defendant ever, informed him or gave him any reason to suspect such repudiation, or offered to refund him his money, which he had paid; that not till 1887 did he know of the location of said certificate on the land sued for; that defendant did not take possession of said land till 1887, which was the first act hostile to plaintiff. The court sustained the defendant's demurrer, setting up laches." Appellee accepts the appellant's statement of the nature and result of the suit with the following explanations: "The Fantharp certificate was one for league and labor, or 4,605 acres. The 866 acres conveyed by Fantharp to Abernathy was out of a tract of 1,314 acres at that time located and surveyed by virtue of the Fantharp certificate in McLennan county. The appellant alleges that in March, 1859, Fantharp, without appellant's consent, floated and removed from said land, and from other lands located and surveyed by virtue of the same, said certificate, and by virtue of the said certificate so floated and removed located and surveyed a tract in Falls county, containing 2,322 acres, out of which he claims 866 acres by virtue of said conveyance."

The assignments of error raise this question: Did the court below err in sustaining the special exception to the petition of the plaintiff, on the ground that his claim or title had become a stale demand? The conveyance of the 866 acres of land by Fantharp described this land by metes and bounds, and the instrument was not, as we think, a quitclaim, but an absolute conveyance of the land itself,...