Alexander v. Barton

• Decision Date: 29 November 1902
• Parties: ALEXANDER et al. v. BARTON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

71 S.W. 71

ALEXANDER et al. v. BARTON et al.^*

Court of Civil Appeals of Texas.

November 29, 1902.

Error from district court, Kaufman county; J. E. Dillard, Judge.

Action by J. E. D. Alexander and others against Minerva Barton and others. From a judgment for defendants, plaintiffs bring error. Affirmed.

This suit was filed by J. E. D. Alexander and others, as the heirs of Mary D. A. Alexander, their mother, to try the title to two tracts of land in Kaufman county; one tract being 200 acres, a part of the R. C. Dixon survey, and the other tract being 19¾ acres of the J. S. Ables survey. The appellees answered by plea of not guilty, plea of valuable improvements, and also pleaded the statute of limitations of five and ten years. Appellants, in replication to said plea of limitations, pleaded the minority of the plaintiffs Bruce Sory and W. H. Sory, Jr., and the coverture of plaintiff Mrs. Nannie Powell. The case was tried before the court without the intervention of a jury, and the court rendered judgment for the defendants, from which said judgment the plaintiffs bring this writ of error.

Weeks & Fleagor, for plaintiffs in error. Huffmaster & Huffmaster, for defendants in error.

BOOKHOUT, J. (after stating the facts).

Plaintiffs read in evidence the following papers, to wit: (1) Deed from John Webb and B. F. Higgins to Mary D. A. Alexander, dated October 29, 1870, consideration $900, conveying 200 acres of land, part of the R. C. Dixon survey, in Kaufman county; being the same 200 acres described in the petition. (2) Deed from A. B. Johnson to Mary D. A. Alexander, dated December 15, 1870, consideration $80, conveying 19¾ acres of land out of the John Abels survey, in Kaufman county; being part of the land described in the petition. (3) Plaintiffs proved that Mary D. A. Alexander paid the consideration for said land out of her separate means, and also the death of Mrs. Alexander, and that they were her heirs. Defendants read in evidence: (1) A deed from C. B. Alexander for himself and as survivor of the community estate of his deceased wife, Mary D. A. Alexander, to A. S. McKinney and S. V. Barton, conveying the two tracts of land described in the petition, for a consideration of $1,000 paid; said deed being dated December 23, 1884. (2) Deed from A. S. McKinney to S. V. Barton for his interest in all of the said land, for a consideration of $360.52 and other considerations; said deed being dated June 13, 1885. It was admitted that S. V. Barton was dead, and that defendants were his surviving wife and heirs at law. Neither the deed from Webb and Higgins, nor the deed from A. B. Johnson to Mary D. A. Alexander, recited that the consideration was paid by her out of her separate funds, or that the land was intended to become her separate estate. C. B. Alexander filed an inventory and appraisement of the community estate of himself and his deceased wife, Mary D. A. Alexander, in the probate court of Cherokee county, and also a bond as survivor of said community estate, all of which are written on the same sheet of paper, on the back of which is the following indorsement: "Approved and ordered to be recorded Nov. 24, 1877. J. P. Gibson, County Judge,"—and also indorsed: "Filed Nov. 24, 1877. W. L. Bird, County Clerk, Cherokee County." That on the 24th day of November, 1877, in the probate court of Cherokee county, J. P. Gibson, county judge of said county, made the following order on his docket, to wit: "Inventory, appraisement, and bond of C. B. Alexander, survivor of the community estate of himself and his deceased wife, Mary D. A. Alexander, filed, approved, and ordered to be recorded." On November 15, 1884, at a regular term of the county court of Cherokee county, upon the application of C. B. Alexander, said court made a finding to the effect that C. B. Alexander was appointed community administrator, and that he filed his bond as such administrator, together with an inventory and appraisement of the community property of himself and his deceased wife, Mary D. A. Alexander, on the 24th day of November, 1877; that the same were approved and ordered to be recorded; that the clerk omitted to record the same; that upon said finding said court made an order in these words: "It is therefore ordered by the court that said bond, inventory, and appraisement be recorded now for November 24, 1877, and that they have the same force and validity and effect as if entered of that date;" and that this order was duly entered upon the minutes of the court, in Book B, p. 578. The court found the above facts in its finding of facts, and its finding is supported by the record. The trial court held, as a matter of law, that the probate proceedings in the county court of Cherokee county, and all its orders pertaining to the qualification of C. B. Alexander as survivor of the community...