Adams v. Slattery

• Decision Date: 14 November 1956
• Docket Number: No. A-5313,A-5313
• Citation: 156 Tex. 433,295 S.W.2d 859
• Parties: Nell B. ADAMS et al., Petitioners, v. Anna SLATTERY et al., Respondents.
• Court: Texas Supreme Court

Page 859

295 S.W.2d 859

156 Tex. 433

Nell B. ADAMS et al., Petitioners, v. Anna SLATTERY et al., Respondents.

No. A-5313.

Supreme Court of Texas.

Nov. 14, 1956.

Rehearing Denied Dec. 19, 1956.

C. B. Cain, Liberty, Orgain, Bell & Tucker, Beaumont, for petitioners.

Thos. A. Wheat, Pickett & Pollan, F. K. Dougharty, Liberty, for respondents.

GRIFFIN, Justice.

Petitioner, Nell B. Adams et al. were plaintiffs in the trial court and respondents, Anna Slattery et al., were defendants. Both parties sought a writ of error to the judgment rendered by the Court of Civil Appeals, and both applications were granted. In order to avoid confusion we will give the parties the same designation they had in the trial court. The action is in trespass to try title to recover 548 acres out of one of the three Conrad Eigeneaur Surveys in Liberty County, being Abstract No. 186, Patent No. 559, Volume 15, less, however, 160 acres in the southwest corner of this Survey which was occupied and claimed by Neville Doucette and his assigns. The defendants also plead a cross-action in trespass to try title for the same land. The survey in suit was patented to the heirs of Conrad Eigeneaur, deceased, on June 30, 1862 by virtue of Certificate No. 555, which was issued to the said heirs by the Board of Land Commissioners of Harrisburg County on June 7, 1838. Plaintiffs claim to have acquired the title of the aforesaid heirs in several different ways. The defendants contend that the plaintiffs failed to prove title and also claim that they, the said defendants, have acquired the title for themselves. The defendants on trial, and the respondents here, are Anna Slattery and Nora Slattery, daughters of Thomas and Kate Slattery. The parents of the defendants died before this suit was filed. Some of the claims asserted by defendants devolved upon them in part by direct inheritance from their parents and in part through their sister, Mayme Slattery, who died after this suit was filed; but they also claim title under their own adverse possession and that of their sister, Mayme.

The cause was tried to the court with a jury, but at the close of the evidence introduced by both parties, the trial court instructed a verdict in favor of plaintiffs and certain cross-defendants for the title and possession of the land in controversy. On appeal this judgment was reversed and remanded. 279 S.W.2d 445.

In 1836 a colonist of the Republic of Texas named Conrad Eigeneaur (sometimes found spelled Eigenauer in the record) was killed at the Battle of Coleto. As such colonist and as a deceased soldier in the war with Mexico for Texas' independence, his heirs became entitled to be awarded certain public lands in the then Republic. On June 7, 1838, Adolphus Sterne, administrator of the estate of Conrad Eigeneaur, procured from the Board of Land Commissioners of Harrisburg County Certificate No. 555 for one-third league of land. This certificate was issued the heirs of Conrad Eigeneaur, deceased, by virtue of which Patent No. 559, Volume 15, Abstract No. 186 was issued by the proper authorities of the State of Texas on June 30, 1862 to the heirs of Conrad Eigeneaur, deceased, and their heirs or assigns for 708 acres of land lying in Liberty County, Texas. The land in controversy in this suit consists of 548 acres out of the above patent. The courthouse of Liberty County, Texas, together with all records, except one book of the County Surveyor's field notes, was destroyed by fire on December 12, 1874. The first records of assessment and payment of taxes on property in Liberty County, Texas begin with the year 1895. Such prior records as are available must be obtained from the records of the State Comptroller at Austin, Texas.

The first assessment of this land was made in 1867 to Conrad Eigeneaur, A. W. B. Thompson, Agt.; assessed to A. N. B. Tompkins in 1868; no assessment in 1869; assessed to A. N. B. Tompkins in 1870 and 1871; assessed to Jas. B. Simpson in 1872; not assessed in 1873, except fifty acres to John Watson; assessed to J. B. Simpson in 1874; unassessed in 1875, except fifty acres to John Watson; unassessed in 1876, except fifty acres to John Watson, and in 1877 was assessed to Thomas Slattery by B. F. Cameron, Agent. By deed dated May 28, 1877, said survey of land 'less 50 acres theretofore sold by James B. Simpson off the northwest corner thereof, together with Lot No. 2, in Block 119 of the Town of Liberty,' was conveyed by George A. N. Zabriskie, assignee in bankruptcy of James B. Simpson, John A. Wallace and J. W. Chisholm, bankrupts, for the Southern District of New York, to Thomas Slattery. Said deed recited that the land described was the same property conveyed to bankrupts by John A. Wallace. Mr. Slattery sent his deed to Liberty County for recording, same being filed for record on June 22, 1877, and recorded in Book C, page 212, Deed Records of said county. B. F. Cameron was County Clerk at the time of the filing of the deed to Thomas Slattery and was also county clerk at the time of the destruction of the deed records in 1874. In returning the deed to Slattery, Mr. Camperon in his letter of June 22, 1877, said, 'No one has assessed your land and paid taxes on it since Simpson sold to Wallace.'

The records further show that the heirs or representatives of Thomas Slattery paid all taxes before they became delinquent on this land from 1924 through 1931, and from 1935 through the year 1948. Taxes for the years 1932, 1933 and 1934 became delinquent before their payment by the Slattery defendants.

After the death of Thomas Slattery in 1889, his wife and children continued to live in Liberty, Texas, until September, 1903, when they moved to Beaumont, Texas and were residing there at the time of the death of the mother, and the three children Mayme, Nora and Anna continued to reside and were residing in Beaumont at the time of Mayme's death in March, 1946, and the other two sisters were residing in Beaumont at the time of the trial in 1952.

With regard to the occupancy of the land in suit there is evidence that Thomas Slattery moved to Liberty, Texas in 1885; that in 1885 or 1886 Thomas Slattery had a pasture on part of the land; that there was a fence inclosing a pasture and a fence around the Eigeneaur Survey that Mr. Slattery claimed; that Slattery ran his cattle and other livestock on this Survey and that Slattery had been seen out there on the place; that the Slattery pasture, known as the 'Slattery Tract' was the Eigeneaur Survey 'except as to 160 acres in the southwest corner.' One witness, born in 1870, testified that he lived for more than fifty years about two miles from the Survey and was well acquainted with the land and it was known as the 'Slattery land' as far back as he could recollect and was used by Mr. Slattery as a pasture; that he assisted Major Dark in making a survey of the land in 1885 or 1886 and at that time saw the pasture fence. Other witnesses testified to the then use of the land by the Slatterys for pasture. Several witnesses testified as to the reputation in the community of ownership of the land as being owned by Slattery. It was shown by evidence produced by plaintiffs and defendants that in 1873 Neville Doucette went on the 160 acres in the southwest corner of the Survey and perfected a claim thereto by limitation. He continued to live there until his death in 1919. He claimed no other part of the land. There was also testimony that Neville Doucette while on the land said at the time Mr. E. B. Pickett fenced a part of said land in 1904 'that the land belonged to old man Slattery and he did not see why Pickett was fencing it.' Various witnesses testified to old fence posts and wires remaining on the Survey in 1900 and later. They also testified to the existence and use of the Slattery pasture on the land in 1890, 1891 and its use as a pasture until 1894. The evidence does not show any occupancy of the land from the time defendants' use and occupancy ceased about the end of the year 1893, until 1904. On March 5, 1890, E. B. Pickett, Sr., was appointed temporary administrator of the estate of Thomas Slattery. On November 20, 1890, B. F. Cameron was granted permanent letters of administration on the estate of Thomas Slattery and qualified. Cameron filed an appraisal and list of property of the estate, showing, among other properties, 650 acres of land in Liberty County, patented to the heirs of Conrad Eigeneaur and half of Lot 2, Block 119 in the Town of Liberty; six head of horses and twelve head of cattle.

The first claim adverse to that of the Slatterys, as shown by the record, is in the year 1895 when W. Von Rosenberg, purporting to act under a power of attorney given by Margaretha Laemmer et al., dated April 11, 1880 (but not filed for record in Liberty County until 1895) conveyed to S. M. Johnson the land patented under Certificate No. 559, Volume 15 and Abstract No. 186 in Liberty County, Texas. The Laemmer power of attorney was executed by a number of people who claimed to be the heirs of one Conrad Eichenauer, a native of Germany who lost his life in the Battle of Coleto in 1836, and who was granted 'certain rights to lands in the Republic, now the State of Texas.' In general, the heirship of the signers of the power of attorney to Von Rosenberg was based upon the statement that Conrad Eichenauer was never married and on his death left surviving him his brother, Christoph Eichenauer, his only heir, who died November 14, 1850 without issue, or any brothers or sisters, or their issue, but did leave a surviving wife, Margaretha Eichenauer, nee Fuchs, who died September 27, 1870. The power of attorney appointed Von Rosenberg their 'agent and attorney in fact to enter upon and take possession of any and all lands in the State of Texas to which we are entitled as the heirs at law of Conrad Eichenauer, deceased', with authority to take such action, including lawsuits, compromises, etc. as might become...