Allen v. Read

• Decision Date: 23 March 1886
• Citation: 17 S.W. 115
• Parties: ALLEN <I>et al.</I> v. READ <I>et al.</I><SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

17 S.W. 115

ALLEN et al. v. READ et al.¹

Supreme Court of Texas.

March 23, 1886.

Appeal from district court, Houston county; J. R. KENNARD, Judge.

Action by R. N. Read and others against Mrs. M. A. R. Allen and others to recover certain real estate, and for partition. Verdict and judgment for plaintiffs, and defendants appeal. Affirmed in part and reversed in part.

In March, 1873, George Fisher, as guardian for Anna Perry, now Mrs. Walker, brought an action against R. N. Read and others to recover an undivided half interest in the Jose A. Aughinbaugh league of land in Houston county, claiming title to such interest only, but demanding possession of the whole league. The wives of defendants Thompson and Jeffus were not parties to the suit. In November, 1878, Mrs. M. A. R. Allen intervened, claiming to be entitled to the other undivided half interest, the plaintiff admitting the claim. A continuance, applied for by defendants on the ground of surprise, was ordered, unless the intervention should be withdrawn, and, this being done, judgment was rendered for plaintiff, who was put in possession of the whole tract by writ issued in May, 1880. Plaintiff permitted Mrs. Allen to take possession with her, conceding her title. In August, 1880, the said defendants and Mrs. Thompson and Mrs. Jeffus joined in an action against Mrs. Allen and Mrs. Walker and husband to recover the premises, claiming title by limitation to separate and distinct tracts, and asking that partition be made. Mrs. Walker's title was conceded by all of the plaintiffs except Mrs. Thompson and Mrs. Jeffus, who claimed title to the whole of their several tracts as their separate property. Verdict was rendered for the plaintiffs, based upon the claim of limitation as against Mrs. Allen, and as against both her and Mrs. Walker in favor of Mrs. Thompson and Mrs. Jeffus. Mrs. Thompson also recovered $840 for rents of the tract she claimed. From the judgment on this verdict the present appeal is prosecuted. The opinion of the court on a former appeal is reported in 56 Tex. 182. After pleading to the merits, Mrs. Jeffus and husband filed a plea in abatement, on the ground that there was still pending an injunction suit, brought by them to restrain defendants from dispossessing them. There being some difference in the way in which the name of the original grantee, Aughinbaugh, was spelled in some of plaintiffs' deeds, the court admitted the testimony of one Duren, county surveyor, that there was but one Aughinbaugh league, or one of similar name, in Houston county. The court refused an offer by defendants to show that when the intervention in the former suit was withdrawn there was no purpose or understanding that the suit should proceed with reference to Mrs. Walker's interest only, and charged that Mrs. Allen's title had not been involved in that suit. In proof of Mrs. Walker's title the court admitted a certificate of the county clerk of Houston county, dated 1835, to the effect that there was then of record in his office a deed (now lost) of Aughinbaugh to one Howard, through which she deraigned title, and charged that, while it was received as evidence tending to prove the existence of the deed, it was not competent to show its execution, delivery, or contents. The court further charged that as to Mrs. Allen the limitation did not cease to run until the writ of possession issued in May, 1880; that as to Mrs. Thompson and Mrs. Jeffus the limitation in their favor was not stopped by the first suit, to which their husbands were parties; and that as to all the plaintiffs except the two last named the judgment in that suit in favor of Mrs. Walker was conclusive. No complete chain of title was shown by plaintiffs, but adverse possession by them was established, and deeds to the several tracts claimed by each were exhibited. There seemed to be no question but that the titles of all the plaintiffs except R. N. Read, George M. Thompson and wife, and Caleb Jeffus and wife, as against Mrs. Allen, were established by limitation, provided it did not cease to run until the issue and execution of the writ of possession in May, 1880.

Nunn, Williams & Corry, for appellants. Abercrombie & Randolph and Denson & Burnett, for appellees.

STAYTON, J.

The plea in abatement was not filed in due order of pleading; and, had it been, it does not appear that it was sufficient, if admitted to be true, to abate this action as to Mrs. Jeffus; for it appears that the prior suit, set up as a ground to abate this, did not involve, at the time this action was brought, the same matters. The 2d, 3d, 9th, 18th, 19th, 20th, 21st, 23d, 27th, and 28th assignments of error raise the same questions as to the right of the plaintiffs to maintain this action which were raised and decided adversely to the appellants on the former appeal. Read v. Allen, 56 Tex. 182. The issues in this case could not have been adjudicated in the case of Fisher, guardian, even against the plaintiffs other than Mrs. Thompson and Mrs. Jeffus; for Mrs. Allen was not a party to that action when it was tried. Nor were Mrs. Thompson and Mrs. Jeffus parties to that action. The former decision of these questions must be held decisive of them.

The record in this case presents no facts necessary to a proper decision of those questions, which did not appear on the former appeal; nor does it show facts which would authorize a different decision.

There was some confusion in the evidence for the defendants, as well as that for the plaintiffs, in reference to the name of the original grantee of the land in controversy, and we do not see that the evidence of the witness Duren could have prejudiced the appellants. We are of the opinion that the deed of Mrs. Spivy, the deed from Becton to her, the deed from Cundiff to Read, and the deed from Daily to Cundiff, were properly admitted in evidence; for, under the evidence, there could be no doubt as to what land was conveyed by them. The testimony of the witness Broxon was received as to the time of the settlement and circumstances of occupation by Calloway; and, if not then made so full on...