Browning v. Pumphrey

• Citation: 16 S.W. 870
• Parties: BROWNING <I>et al.</I> v. PUMPHREY <I>et al.</I>
• Decision Date: 22 May 1891
• Court: Texas Supreme Court

16 S.W. 870

BROWNING et al. v. PUMPHREY et al.

Supreme Court of Texas.

May 22, 1891.

Appeal from district court, Jones county; J. B. COCKRELL, Judge.

Action by C. A. Browning and others against J. L. Pumphrey and others. The court charged that "the proof must be clear, explicit, and free from doubt that the money of the estate of Smithers was paid at the time the purchase was made, or prior thereto, in order to create such trust," and that "a trust may be established by a written memorandum clearly showing the nature and character of such trust, and such writing must be clear and explicit, and free from doubt or conjecture." From a verdict and judgment for defendants, plaintiffs appeal.

Bentley & Bowyer, for appellants. W. R. Neal and J. H. Burts, for appellees.

STAYTON, C. J.

The land in controversy was patented to J. S. Calvert on December 15, 1855, as assignee of a land certificate originally issued to Gabriel Martinez, of which Phillip Dimmitt became the owner. In the partition of his estate the land certificate was set apart to three of his minor children, and under proper order of the probate court it was sold in January, 1852, to J. S. Calvert, who was then the administrator of the estate of L. Smithers, deceased, in course of administration in Bexar county. It is claimed that J. S. Calvert bought the certificate for the estate of Smithers, paid for it as well as for its location out of the funds of that estate, and that he recognized the title of the estate to the land until the time of his death, which occurred on April 18, 1867, and, through inheritance from L. Smithers, appellants seek to recover a part of the land. L. Smithers died intestate and without issue in 1842, leaving as his heirs Samuel Smithers and Priscilla Calvert, née Smithers, brother and sister of the full blood, and Fleming White and Elizabeth Smithers, née White, brother and sister of the half blood. The sister Priscilla was the wife of J. S. Calvert, and survived him, as did six children, and on January 4, 1879, she conveyed the land to their children by a deed that was recorded in the county in which the land is situated on July 12, 1882. James L. Pumphrey holds under conveyances from the children of J. S. and Priscilla Calvert made in April and May, 1884. On March 24, 1887, the children of Samuel Smithers, then deceased, and the children of Fleming White, also deceased, brought an action against Pumphrey to recover their interests in the league and labor of land, alleging that it was the property of the estate of L. Smithers. That action was disposed of in the absence of plaintiffs or their counsel, and on January 23, 1888, they filed their petition, which is in the nature of a bill of review as well as a petition to try title, and by that the vendors of Pumphrey were made parties defendant with him. On August 26, 1887, the children of Elizabeth Smithers brought an action against J. L. Pumphrey and his vendors to recover one-sixth of the league and labor of land, basing their claim on the same grounds as did the plaintiffs in the other action. These cases were consolidated, and on trial judgment was rendered for defendants. When the action brought, on March 24, 1887, was called for trial, plaintiffs therein did not appear either in person or by attorney; and the defendants having alleged title in themselves, and that the claim of plaintiffs was a cloud upon it, and asked that this be removed, the court heard the case upon its merits, and rendered a judgment in favor of defendants in accordance with their prayer; after which the plaintiffs filed a motion for new trial, which was overruled, and from that judgment no appeal was prosecuted. The answer in that case did not seek any relief that would not have been as fully secured by a judgment in favor of the defendants as by a judgment removing cloud from their title; and proper practice, on the failure of plaintiffs to be present and prosecute their action, would have required that the cause be dismissed without any further action; but we are not prepared to hold that the court had not jurisdiction to try the cause on its merits, and to render the judgment entered, even in the absence of plaintiffs and their attorneys, and, if the action of the court in this respect was not proper, plaintiffs might have had relief by appeal. If, however, no effect ought to be given to that judgment, other than a dismissal of the cause, then the cause went out of court as fully as it did under the judgment rendered, and plaintiffs in that cause are not now entitled to any benefit resulting from the fact that the action was brought, unless on the trial of this cause they showed such facts as entitled them to have the judgment therein rendered, in effect, set aside. The court below, on overruling exceptions to the bill of review, seems to have set the former judgment aside without hearing evidence; but this was erroneous, and evidently done through inadvertence, and on the trial from which this appeal is prosecuted the entire case was tried on its merits, as though the former order setting aside the former judgment had not been entered. This procedure was correct, and on this branch of the case the only inquiry is, did plaintiffs show such facts as entitled them to relief against the former judgment, whether it be treated as simply a...