Berry v. Powell

• Decision Date: 30 March 1907
• Citation: 105 S.W. 345
• Court: Texas Court of Appeals
• Parties: BERRY v. POWELL et al.

Page 345

105 S.W. 345

BERRY v. POWELL et al.

Court of Civil Appeals of Texas.

March 30, 1907.

On Rehearing, November 23, 1907.

Appeal from District Court, Harrison County; Richard B. Levy, Judge.

Action by D. W. Powell against Charles W. Staples on vendor's lien notes and for foreclosure of vendor's lien, in which Emily Berry claimed title against both Powell and Staples to one-half the land in question, and asked appropriate relief. From a judgment for plaintiff, Berry appeals. Reversed and remanded.

See 104 S. W. 1044.

P. M. Young and Albert W. Webb, for appellant. S. P. Jones, for appellee.

BOOKHOUT, J.

On January 26, 1905, appellee D. W. Powell filed in the district court of Harrison county, Tex., his original petition, wherein he sought judgment against Charles W. Staples, defendant, on certain vendor's lien notes described in said petition, and also a foreclosure of his vendor's lien upon the land in controversy. Charles W. Staples answered, alleging a breach of warranty of title and setting up title to one-half the land in Emily Berry of Orange county, N. C. On May 9, 1905, Emily Berry filed her original answer, in which she claims title against both Powell and Staples to one-half of the land, and asks appropriate relief. Subsequently Charles W. Staples died, and his heirs were made parties and guardian ad litem appointed for the minors. Plaintiff by appropriate pleadings and averments asks as against the heirs of Staples, to wit, a rescission of the sale, made by himself to Staples, and a cancellation of the warranty deed executed by him to Charles Staples, and offers to surrender the purchase-money note for cancellation. As against Emily Berry, he asks judgment for the land and costs. The minor heirs of Charles Staples allege breach of contract, failure of title, and ask abatement of purchase money to the extent of one-half, and for appropriate relief. The adult heirs of Staples failed to answer. Emily Berry, by appropriate pleadings, avers ownership in herself in one-half of the lands in controversy, brings her action in form of trespass to try title and for partition, as against Powell, the heirs of Staples and John B. Tullis, and as against all of them asks for a partition of the estate of James McCulloch, the common source of title of all claimants to the land. Plaintiff Powell also by appropriate pleadings and prayer asks a partition of the estate of James McCulloch, and that the land in controversy be set aside to him, and that Emily Berry be compensated for her interest in same, if any, out of the other lands belonging to the estate of James McCulloch, averring that there is ample left to compensate her. John B. Tullis files a disclaimer as to the particular lands in controversy, but not as to the estate of James McCulloch. The following facts were shown upon trial: The property in controversy was purchased by James McCulloch April 13, 1888, for cash. James McCulloch married M. J. Tullis on November 13, 1888. James McCulloch died intestate in Harrison county, Tex., in 1899, and left surviving him M. J. McCulloch, his wife, who died in 1904. James McCulloch left no children nor descendants of any, nor father nor mother, nor descendants of either, except Emily Berry, who was his illegitimate sister. M. J. McCulloch left as her heir John B. Tullis, her only child, the issue of her former marriage. On January 1, 1903, M. J. McCulloch and John B. Tullis and wife sold the land in controversy to D. W. Powell for cash, and on February 1, 1903, D. W. Powell sold same to Charles Staples for $400 and three notes aggregating $1,900, vendor's lien retained in deed and notes. Staples defaulted in 1904, and Powell sued for foreclosure. Staples died in 1906, and his heirs were made parties and by amendment Powell sought to rescind. The heirs pleaded outstanding title to one-half in Emily Berry, and asked to rescind and compensation for improvements, and pleaded and proved payment of $800 of the purchase money. The balance due on the notes at the time of the trial was $2,500, which amount the heirs of Charles Staples refuse to pay or to pay any part thereof. Charles Staples at his death left no wife surviving him, but left children by his last wife as follows: Survilla Staples, Addie Staples, Elpe Staples, Alice Staples, Alberta Staples, all minors and represented by J. H. T. Bibb, guardian ad litem, and the following children by his first wife: Millie Wheeler, who is married to John H. Wheeler, and Ella Wright. The uncontroverted testimony showed that Emily Berry and James McCulloch were illegitimate children of one Elizabeth McCulloch, who died before James McCulloch, and that Emily Berry was sole survivor and next of kin to James McCulloch. In accordance with the court's charge the jury returned the following verdict: "We, the jury, find for the plaintiff against the defendants and intervener, and canceling the deed executed by plaintiff D. W. Powell to Charles Staples, and vesting title to the land described in plaintiff's petition in plaintiff." Judgment followed for Powell for the land as against the heirs of Staples and as against Emily Berry, and that she take nothing. Emily Berry has prosecuted an appeal to this court.

The only question presented by the appeal is: Under our law, can an illegitimate sister inherit from an illegitimate brother both being of the same mother? At common law a bastard could not inherit. He was filius nullius; the son of no one. The father was not recognized because of the uncertainty of his identification, and recognition was denied the mother as a penalty for her transgressions, and, as a further punishment, the innocent issue of such unlawful intercourse was made the first of his line. The harshness of the common law has been relieved in nearly all the states of the American Union by statute. In the absence of any statutory provision, the courts of the state of Connecticut hold that bastards inherit to and from the mother or any collateral relative on the mother's side. Dickinson's Appeal, 42 Conn. 491, 19 Am. Rep. 553; Heath v. White, 5 Conn. 228; Brown v. Dye, 2 Root (Conn.) 280. Under the statutory provisions of the respective states in which the decisions were made, it is held that bastards may inherit and transmit inheritance by the following cases: Garland v. Harrison, 8 Leigh (Va.) 368 et seq.; Hepburn v. Dundas, 13 Grat. (Va.) 219; Bennett v. Toler, 15 Grat. 588, 78 Am. Dec. 638; Moore v. Moore, 169 Mo. 432, 69 S. W. 278. 58 L. R. A. 451; Lewis v. Eutsler, 4 Ohio St. 354; Burlington v. Fosby, 6 Vt. 83, 27 Am. Dec. 535; Briggs v. Greene, 10 R. I. 495; Grundy v. Hadfield, 16 R. I. 579, 18 Atl. 186; McGuire v. Brown, 41 Iowa, 650; Gregley v. Jackson, 38 Ark. 487; Butler v. Land Co., 84 Ala. 384, 4 South. 675; Miller v. Williams, 66 Ill. 91; Rogers v. Weller, 5 Biss. 166, Fed. Cas. No. 12,022; Jenkins v. Drane, 121 Ill. 217, 12 N. E. 684; Bales v. Elder, 118 Ill. 436, 11 N. E. 421; Elder v. Bales, 127 Ill. 425, 21 N. E. 621; McBryde v. Patterson, 78 N. C. 412; Coor v. Starling, 54 N. C. 243; Parks v. Kimes, 100 Ind. 148; Messer v. Jones, 88 Me. 349, 34 Atl. 177; Lawton v. Lane, 92 Me. 170, 42 Atl. 352; Matter of Magee's Estate, 63 Cal. 414; Keeler v. Dawson, 73 Mich. 600, 41 N. W. 700; Brewer v. Blougher, 14 Pet. (U. S.) 178, 10 L.Ed. 408, construing the Maryland statute. And many of these cases hold that bastard children of the same mother may inherit from each other. Garland v. Harrison, 8 Leigh (Va.) 368 et seq; Hepburn v. Dundas, 13 Grat. (Va.) 219; Moore v. Moore, 169 Mo. 432, 69 S. W. 278, 58 L. R. A. 451; Burlington v. Fosby, 6 Vt. 83, 27 Am. Dec. 535; Briggs v. Greene, 10 R. I. 495; Butler v. Land Co., 84 Ala. 384, 4 South. 675; Brown v. Dye, 2 Root (Conn.) 280; Rogers v. Weller, 5 Biss. 166, Fed. Cas. No. 12,022; McBryde v. Patterson, 78 N. C. 412; Parks v. Kimes, 100 Ind. 148; Brewer v. Blougher, 14 Pet. (U. S.) 178, 10 L. Ed. 408; Matter of Magee's Estate, 63 Cal. 414. Among the first to legislate on this subject was Virginia, which state at an early date passed a statute reading: "Bastards shall be capable of inheriting or of transmitting inheritance on the part of their mother in like manner as if they had been lawfully begotten of such mother." This statute first came under review by the Supreme Court of the United States in the case of Stevenson v. Sullivant, 5 Wheat. 207, 5 L. Ed. 70, where it was held that notwithstanding this statute a bastard was still at common law filius nullius as to his collateral blood relatives on his mother's side, and could not inherit from them. It next came under review in Scroggin v. Allan, 2 Dana (Ky.) 363, in which the case of Stevenson v. Sullivant was followed. There was an able dissenting opinion by Judge Underwood, in which he expressed it as his opinion that the statute places bastards upon the same footing in all respects as regards inheritance on the mother's side with legitimate children. The statute did not come before the Court of Appeals of Virginia for its construction until May, 1837, when that court in the case of Garland v. Harrison, supra, held that the bastard brothers of the decedent, as well as his mother, were entitled to take as his heirs under this statute. The court repudiated the construction placed on the statute by the Supreme Court of the United States in Stevenson v. Sullivant. Able and exhaustive opinions were delivered by each of the judges, all agreeing as to the purpose of the statute, and that its object was "to give to the bastard a mother and maternal kindred and to make them heritable from each other in the order prescribed by the law of descents as if the bastard had been lawfully begotten of such mother." This construction has been uniformly followed by the later decisions in that state. Hepburn v. Dundas, supra; Bennett v. Toler, supra. On the 28th day of January, 1840, the Congress of the Republic of Texas adopted the following statute: "Bastards shall be capable of...