Benson v. Cahill

• Decision Date: 23 May 1896
• Citation: 37 S.W. 1088
• Parties: BENSON et al. v. CAHILL et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W. 1088

BENSON et al. v. CAHILL et al.¹

Court of Civil Appeals of Texas.

May 23, 1896.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action in trespass to try title by Patrick Cahill against C. H. Benson and others. Judgment for plaintiff, and finding the value of improvements made by defendants in good faith, from which defendants appeal, and plaintiff makes cross assignments of error. Affirmed on defendants' appeal, and reversed on cross appeal.

Kearby & Muse, for appellants. Dickson & Moroney, for appellees.

FINLEY, J.

Patrick Cahill, appellee, as plaintiff, sued in trespass to try title on January 19, 1894, in the district court of Dallas county, to recover 300 acres of land, and rents therefor, from C. H. Benson and wife, N. L. Benson; Isaac Benson and wife, S. F. Benson; Robert N. Merritt and wife, Dora Merritt; Jim Baker and wife, E. R. Baker; George Brown and wife, Louisa Brown; Joel Wood and wife, S. Wood; T. K. Flowers and wife, M. J. Flowers; J. T. Flowers and wife, S. E. Flowers. All the defendants pleaded not guilty. The defendants Baker and wife and Wood and wife, in addition thereto, described by metes and bounds the respective tracts of land claimed by them, and pleaded the 10-years statute of limitation thereto. The remainder of the defendants, in addition to the plea of not guilty, pleaded purchase and improvements in good faith, under possession, more than one year prior to the institution of the suit. After the conclusion of the argument, the death of the defendant J. T. Flowers was suggested, and the court dismissed the suit as to him and wife, S. E. Flowers. The court charged the jury to find for the plaintiff the land sued for, and submitted the issue as to improvements in good faith as to those defendants pleading the same. The trial, which was by jury, resulted on May 10, 1895, in a verdict in favor of the plaintiff for the land sued for, and for defendants pleading improvements in good faith for the sum of $4,035, the value of improvements made, and the assessment of the value of the land without improvements at $4,500, and judgment was rendered in accordance with such verdict. Defendants' motion for new trial was overruled, exceptions thereto taken, and notice of appeal duly given. All the defendants perfected appeal by filing supersedeas bond on June 15, 1895, except J. T. Flowers, who had been dismissed from the suit as aforesaid, and Joel Wood and S. Wood, which last two defendants are made appellees. Appellants bring this cause, on appeal, for revision.

Upon the trial of the cause the plaintiff, Patrick Cahill, established a complete chain of title from the government down to himself, by proving: (1) A patent from the state to James M. Hamilton to one-third of a league of land, including the 300 acres sued for. (2) Order of probate court appointing R. S. Hamilton administrator of the estate of James M. Hamilton, dated April 1, 1852, and showing that he duly qualified as administrator. (3) Petition of Adam Sullivan for a partition of the James M. Hamilton survey, filed in the court where the administration was pending, he claiming one-third locative interest in the same. (4) Regular proceedings in partition, consummated by a decree of the court partitioning the land, and setting aside to Adam Sullivan one-third of the survey, describing the same by metes and bounds; divesting the title out of the Hamilton estate and heirs, and investing Adam Sullivan with title thereto,— the land so decreed and set apart to Adam Sullivan embracing the land here in controversy. (5) A deed from Adam Sullivan and wife, based upon the consideration of love and affection, to their daughter Adeline Geiger, conveying the land in controversy. The deed itself designates the grantee as "their daughter Adeline Griger." The evidence clearly shows that the daughter Adeline's married name was "Geiger," and that they had no daughter whose married name was "Griger." (6) A judgment of the district court of Kaufman county in favor of T. C. Sadler against J. C. Geiger and his wife, Adeline Geiger, for the sum of $65.44. The land was sold under an execution issued upon said judgment, and was purchased by the plaintiff, Patrick Cahill.

There were a number of objections raised to the evidence introduced by the plaintiff in support of his title:

1. The administration proceedings had upon the estate of James M. Hamilton, in Red River county, were objected to upon the ground that they were not recorded in Dallas county, where the land was situated, and because the transcript was not authenticated, except by the county clerk of Red River county. There being no issue of innocent purchaser involved, it was not necessary to the admissibility of the evidence that it should have been recorded in Dallas county. Henderson v. Lindley, 75 Tex. 185, 12 S. W. 979. The clerk of the county court of Red River county was the only person who could properly authenticate the transcript, and the bill of exceptions shows that the transcript was properly authenticated by him.

2. The introduction of the deed from the administrator of the estate of James M. Hamilton to Adam Sullivan was objected to upon the ground, among other things, that it did not describe the land in controversy. The point here raised is rendered immaterial by the fact that the decree of partition correctly described the land, and vested the title in Adam Sullivan. The administrator's deed was wholly unnecessary to show title in Adam Sullivan.

3. Objection was urged against the introduction of the deed from Adam Sullivan and wife to their daughter Adeline Geiger for the reason that it did not embrace the land described in plaintiff's petition. The petition describes the land by reference to existing monuments, and it was shown that this description embraced 300 acres of the land covered by the decree of partition between the estate of James M. Hamilton, deceased, and Adam Sullivan. The deed in question did not describe the land in the same manner that it was described in plaintiff's petition, but the description, together with the other evidence in the case, was sufficient to identify the land conveyed as the same land described in plaintiff's petition.

4. Plaintiff proved by witnesses that Adam Sullivan, to whom the locative interest in the Hamilton survey was decreed and set aside by the probate court of Red River county, was the same person who afterwards conveyed 300 acres of said land to his daughter Adeline, and that she was the same person against whom the judgment was rendered under which the land was sold, and purchased by the plaintiff. This evidence was objected to upon the stated ground that plaintiff claimed under "Adeline Griger," while defendants claimed under "Adeline Geiger." The deed which conveyed the title out of Adam Sullivan named the grantee as their daughter "Adeline Griger." The judgment under which plaintiff holds is against "Adeline Geiger." The evidence identified the person to whom Adam Sullivan conveyed the land as the person against whom the judgment was rendered. Appellants and the plaintiff both claim under Adeline Geiger; the latter under execution sale, and the former through voluntary conveyances from her heirs or their attorney, made subsequent to plaintiff's purchase, and with notice of his title. Under this state of case, it is unnecessary to consider whether "Griger" and "Geiger" are idem sonans. It was clearly admissible for plaintiff to prove that Adeline Geiger, the defendant in the judgment under which he purchased, was the same person to whom the land was conveyed under the name of "Adeline Griger."

The judgment against Adeline Geiger, under which plaintiff purchased, it is contended, should not have been admitted in evidence. The grounds of the objection urged were— First, that there were no facts recited in the judgment which would legally justify a judgment against a married woman; second, that the judgment, upon its face, shows that it could not lawfully be rendered against a married woman. The judgment was rendered by the district court of Kaufman county in the suit of T. C. Sadler v. J. C. Geiger and his wife, Adeline Geiger. It was rendered in favor of the plaintiff in the suit against the defendants J. C. Geiger and his wife, Adeline Geiger, and sureties on their certiorari bond, B. D. Turner and A. C. Hunt, for said sum of $65.44, and costs of suit. The judgment does not set out the nature of the debt,—how it arose,—but it declares it to be a just charge and demand, for which the wife's separate property is liable, and directs that execution first run against the community property, and, if that failed to satisfy the judgment, then against the separate...