Brown v. Foster Lumber Co.

• Decision Date: 25 February 1915
• Docket Number: (No. 6761.)
• Citation: 178 S.W. 787
• Parties: BROWN et al. v. FOSTER LUMBER CO.
• Court: Texas Court of Appeals

178 S.W. 787

BROWN et al. v. FOSTER LUMBER CO.

(No. 6761.)

Court of Civil Appeals of Texas. Galveston.

February 25, 1915.

Appellee's Motion for Rehearing Denied March 11, 1915.

Appellants' Motion for Rehearing Denied June 30, 1915.

Appeal from District Court, San Jacinto County; J. Llewellyn, Judge.

Trespass to try title by the Foster Lumber Company against R. P. Brown and another in which Mary E. Brown filed a petition in intervention. Judgment for plaintiff, and defendant and intervener appeal. Reversed and remanded.

Baldwin & Baldwin, of Houston, for appellants. N. C. Abbott, of Houston, for appellee.

PLEASANTS, C. J.

This is an action of trespass to try title brought by appellee against R. P. Brown and the Michigan Diamond Oil & Refining Company to recover the D. M. Bullock 601½-acre survey in San Jacinto county. After the trial began plaintiff took a nonsuit as to the Oil & Refining Company.

The defendant R. P. Brown disclaimed title to all the land, except a tract of 160 acres described in his answer, as to which he pleaded not guilty. He also pleaded limitation of 10 years; that the land was the separate property of his wife; and that it was, and had been since 1875, the homestead of himself and wife.

Mary E. Brown, the wife of defendant, filed petition in intervention, in which she claimed the 160 acres of land as her separate property, alleging that it was conveyed to her by James Smith in 1875 for her sole and separate use, and that she paid for said land with property and money belonging to her separate estate. She also pleaded limitation of 10 years, and that the property had been her homestead since 1875.

The trial in the court below without a jury resulted in a judgment for plaintiff against appellants, R. P. Brown and Mary E. Brown, for the entire tract of 601½ acres.

The record discloses the following facts: The D. M. Bullock survey was patented to M. O. Dimon, assignee, on April 3, 1852. Dimon conveyed it to Gabriel Freidberger on February 7, 1866. In 1873 or 1874 James Smith settled upon the Bullock survey, and in 1875 he sold the 160 acres now claimed by appellants, and upon which he then lived, to Mrs. Brown, for a consideration of $150. This consideration was paid by Mrs. Brown out of her separate estate. After she bought from Smith, she and her husband took possession of the 160 acres and lived thereon continuously for 12 or 13 years, cultivating and using a portion thereof and claiming the whole 160 acres. They afterwards bought a tract of 56 acres upon the Patterson survey adjoining the 160 acres claimed by them on the Bullock and built them a house on said 56 acres. Their dwelling house was near the line of the 160 acres, and the fencing on the two tracts was connected, and both tracts have been used for homestead purposes up to the present time. On May 12, 1899, Gabriel Freidberger brought suit in the district court of San Jacinto county against R. P. Brown and others, to recover the title and possession of the Bullock survey. Mrs. Brown was not a party to this suit, had no knowledge of the fact that the suit was pending, and knew nothing of the judgment that was rendered therein. On October 18, 1900, the following judgment was rendered in said suit:

"On this the 18th day of October, 1900, the above case came on to be heard, and the defendant R. P. Brown having agreed to take nothing and to surrender all right and claim that he had or might have at the time of filing of this suit, and the defendant McWilliams having wholly failed to make answer to this petition herein filed in this case, thereupon judgment was asked for and taken in the above styled and numbered cause against the said McWilliams, and Mrs. E. J. McDaniels, one of the defendants in said cause, made and entered into an agreement with the plaintiff G. Freidberger that she take 80 acres of said land which her improvements now stand on, the same to be taken as near as possible out of the northeast corner of the hereinafter described lands, and the said Freidberger is to have and recover the timber on said 80 acres of land, and that the title of said lands be divested out of each and all of the defendants, except the said E. J. McDaniels, who is to have the above 80 acres, and the title to this balance of said land be invested in the said Freidberger, and the title to the said above 80 acres to be divested out of said Freidberger (except the timber on said 80 acres) and invested in the said McDaniels, which said land is described as follows: [Here follows description of the Bullock survey.] It is therefore ordered, adjudged, and decreed by the court that the plaintiff G. Freidberger do have and recover of the defendants, James McWilliams, R. P. Brown, and Mrs. E. J. McDaniels, the lands sued for in plaintiff's petition, except the 80 acres heretofore mentioned and excepted, and the said E. J. McDaniels is to recover the said 80 acres."

On February 7, 1902, Gabriel Freidberger conveyed to the Foster Lumber Company a portion of the Bullock survey, described as follows:

"All the unsold tract or parcel of land situated in San Jacinto county, Tex., being 601½ acres of land patented to M. O. Dimon, assignee of D. M. Bullock, April 3, 1852, No. 337, certificate 178, and described by metes and bounds as follows: [Here follows field notes of Bullock survey] — save and except 80 acres of said land decreed by the district court of said San Jacinto county in the case of G. Freidberger v. R. P. Brown et al., No. 858, of date October 18, 1900, to belong to Mrs. E. J. McDaniels, to be taken by her out of said land where her improvements stand, and the same to be taken, as near as possible, out of the northeast corner thereof."

Under appropriate assignments of error, the appellants assail the judgment of the trial court upon three grounds: First. It is contended that the undisputed evidence shows the 160 acres of land in controversy was the separate property of Mrs. Brown, and she, not being a party to the suit of Freidberger against her husband, R. P....