Arnold v. Hodge

• Decision Date: 26 January 1899
• Citation: 49 S.W. 714
• Parties: ARNOLD v. HODGE et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

49 S.W. 714

ARNOLD v. HODGE et al.¹

Court of Civil Appeals of Texas.

January 26, 1899.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action of trespass to try title by T. J. Hodge and others against O. W. Arnold and others. There was a judgment for plaintiffs, and defendant Arnold appeals. Affirmed.

Mann & Baker, for appellant. Hume & Kleberg and D. R. Peareson, for appellees.

GARRETT, C. J.

This was an action of trespass to try title brought by the appellees, as the heirs of Archibald Hodge and his wife, Lottie Hodge, against the appellant, O. W. Arnold, and others, for the recovery of a part of the headright league of land granted to Archibald Hodge as a colonist, situated in Montgomery county, Tex. The case was tried before the court without a jury, and resulted in a judgment in favor of the appellees for one-half of the land sued for. The defendant Arnold has appealed from the judgment against him, and both parties have assigned errors.

In the year 1831 the Mexican government granted to Archibald Hodge, as a colonist, a married man, and the head of a family, a league of land situated in Montgomery county, Tex., of which the land sued for is 3,637 acres. Hodge and his wife continued to reside in Texas until the year 1841, when she died. At her death she left four children surviving her, to wit, Cynthia, Emily, Frenetta, and Abner, who, and the heirs of such of them as have died, are the plaintiffs in this suit. Cynthia afterwards married one Moffitt, and is a widow. Emily is the widow of Joseph Stansbury. Frenetta married Henry Dunlavy, and died leaving the plaintiff M. B. Dunlavy as her sole heir. The other plaintiffs inherit from Abner, who died in the year 1860. Archibald Hodge, having survived his wife, married again twice, and afterwards died, in the year 1864, leaving a will and a surviving wife. The land sued for was the community property of himself and his wife of the first marriage, Lottie, and was inventoried as part of his estate. There were no debts at the time of his death against the community of himself and his wife, Lottie. Shortly before his death, Archibald Hodge conveyed to his daughter, Cynthia Moffitt, 640 acres of the league granted to him. He had previously conveyed 200 acres thereof to William H. Battle, by deed dated February 13, 1846, and 500 acres thereof to John W. Crump, by deed dated March 13, 1864. The date of the deed to Cynthia Moffitt was March 16, 1864, and recited, as a consideration, natural love and affection. All of these deeds were duly acknowledged and recorded. The will made Joseph Stansbury and C. W. Buckley executors without bond, and free of control of the probate court. The testator devised to his daughter Cynthia Moffitt certain negroes, which were valued in the inventory at $1,450, to his daughter Emily Stansbury negroes valued at $1,950, and to his daughter Frenetta Dunlavy, mother of the plaintiff M. B. Dunlavy, negroes valued at $2,060. There was a memorandum on the inventory made by C. W. Buckley, one of the independent executors, "that the 700-acres homestead tract was conveyed in 1859 to Abner Hodge as a gift, but, as the testator devised part of the land in his will, it is inventoried." By the will, which is dated February 21, 1864, the testator desired that the negroes be kept together until the crop of that year should be gathered, before the division to the legatees. He gave to his wife one-half of all personal property, except negroes, and for her life-time certain negroes, named, and 200 acres of the homestead tract, described by metes and bounds. The residue of his estate was to be divided among his daughters and the children of Abner. Archibald Hodge died owing some debts. The inventory of the estate, as returned by the executors, footed up $17,420.50, and shows 13 negroes, 700 acres of land in Ft. Bend county, the homestead tract, valued at $4,200, and "3,722 acres of land in Montgomery county, Texas, being residue of headright of deceased, valued at $3,722.00." The probate records show that in July, 1868, C. H. Kendall was appointed administrator de bonis non of the estate. His inventory showed: 200 acres of land, $400; 15 head of cattle, $37.50; 3,722 acres of land in Montgomery county, residue of the headright of deceased, valued at 20 cents an acre, $744.40. Kendall made an application for the sale of land to pay debts of the deceased, filed December 29, 1868. It recites that there are debts amounting to $502.33, besides costs and privileged claims; that there are no funds on hand, and nothing to make money, except 200 acres of land in Ft. Bend county. It does not mention the land in controversy. There is also among the papers of the estate a report of sale by the administrator, sworn to September 28, 1869. It reports the sale of the 3,722 acres, residue of headright league of the deceased, to Nelson Dunlavy, at 11 cents per acre, made September 7, 1869. It recites that a previous sale of the land was made on the first Tuesday in February, 1869, to Thomas Fallon, but that he failed to comply with the terms of the sale. At the same term the court entered an order in said estate as follows: "September 29, 1869. On this day came on for consideration the report of C. H. Kendall, administrator of said estate, of land by him sold as property of said estate, which land is described, to wit, situated in Montgomery county, containing 3,722 acres, and being the remainder of the headright league of Hodge, deceased; and the court having made inquiry into the manner in which said sale was made, and being satisfied that said sale was legally and fairly made according to law and the order of this court, and that said sale should be confirmed, therefore it is ordered by the court that said sale be, and the same is hereby fully approved, and it is further ordered that C. H. Kendall, administrator as aforesaid, make and deliver to N. B. Dunlavy, the purchaser, a good and proper deed for the land sold." The report of sale and the decree of confirmation both appear in the minutes of the court, and in the final records of the estate. There was also put in evidence a copy of the notice of sale made by C. H. Kendall, administrator of the estate of Archibald Hodge, deceased, dated August 6, 1869, reciting that "on Tuesday, the 7th day of September, 1869, he will proceed to sell, in conformity with the order of the probate court of Ft. Bend county, between the legal hours, before the court-house door in said county, to the highest bidder, on a credit of twelve months, dating from the 2d day of February, 1869 (the same having been sold of that day, when Thomas Fallon became the purchaser, who has not complied with the terms of sale), the following tract of land, situated in Montgomery county and state of Texas, containing 3,722 acres," the same being the residue of the headright league of Archie Hodge; the purchaser giving a lien on the land to secure the purchase money. The administrator executed to Dunlavy a deed dated September...