Bumpass v. Anderson

• Decision Date: 20 May 1899
• Citation: 51 S.W. 1103
• Parties: BUMPASS v. ANDERSON et al.
• Court: Texas Court of Appeals

51 S.W. 1103

BUMPASS v. ANDERSON et al.

Court of Civil Appeals of Texas.

May 20, 1899.

Appeal from district court, Hunt county; Howard Templeton, Judge.

Action by Levica Anderson and others against J. K. Bumpass. Judgment for plaintiffs, and defendant appeals. Affirmed.

Perkins, Gilbert & Perkins and Ed. R. Bumpass, for appellant. Sherrill & Hefner and Seay, Seay & Seay, for appellees.

BOOKHOUT, J.

Appellees, Levica Anderson et al., instituted suit against appellant, J. K. Bumpass, April 22, 1898, in trespass to try title, and for possession of the premises in controversy, consisting of 500 acres of land out of the Reese Price survey, situated in Hunt county, Tex.; claiming said premises by virtue of being heirs of one William T. Miller, who died in Nashville, Tenn., in 1857. Appellant, J. K. Bumpass, answered: (1) General exception; (2) not guilty; (3) limitation of 3, 5, and 10 years; (4) valuable improvements on said premises of $500; (5) that he had possession of the premises by regular chain of title from the sovereignty of the soil, and also by virtue of a deed executed by C. W. Collier, tax collector of Hunt county, Tex., to one E. J. Waldron, dated June 1, 1886, filed for record December 6, 1887. In addition: That one of his warrantors was J. D. Martin. That he relied upon said warranty. That said warrantor is dead, and left surviving him a large estate, inherited by the following heirs and only heirs: Mrs. E. C. Martin, mother of said J. D. Martin; William A. Martin and Ben L. Martin, brothers of said J. D. Martin; Mrs. Mary Marshall, wife of A. S. Marshall, who was a sister of said J. D. Martin. That the value of the property inherited by these parties, of the said J. D. Martin, was in excess of the value of the premises in controversy. William and Mrs. E. C. Martin and Mrs. Mary E. Marshall answer, "Not guilty, and no warranty." Appellees amended, and suggested death of Levica Anderson, and made new parties plaintiff. Upon the trial, judgment was rendered for appellees for the land sued for, with writ of possession, to which appellant excepted and gave notice of appeal, and has duly prosecuted an appeal to this court.

Appellant's first assignment of error complains of the action of the trial court in refusing to grant his application for a continuance. The record shows that such an application was made, but does not show that it was called to the court's attention, or that it was acted upon by the court; hence this assignment will not be further considered.

Appellant's second assignment of error complains of the action of the court in admitting in evidence the deed from L. W. Gilliam to William T. Miller, dated March 5, 1855; the objection to said deed being that the plaintiff sues for land, a part of the Reese Price survey in Hunt county, Tex., and this deed described land, a part of the Reese Price survey in Kaufman county, and there are no pleadings upon the part of plaintiffs alleging a mistake in the location of the land in said deed. If this deed was improperly admitted, yet it would not be ground for reversing the judgment. The plaintiffs introduced the title papers of defendant to show that the plaintiffs and defendant claimed from a common source. Such source was shown to be a judgment of the district court of Hunt county, rendered in a cause in said court (No. 2,295) styled, "L. E. Holden vs. E. J. Waldron et al.;" said suit having been brought to have partitioned among the respective owners the Reese Price survey. In this suit 500 acres of said survey were set aside to W. T. Miller. A judgment for costs was rendered against said W. T. Miller, if living, or his heirs if dead, and execution issued thereon; and the 500 acres set apart to him were sold to satisfy said execution, and the land bought by John D. Martin, under whom defendant deraigned title by mesne conveyances. The plaintiffs elected to accept the benefits of said judgment of partition, and sued for the 500 acres of land set aside in this partition to their ancestor, W. T. Miller. Such judgment was the common source of title, and it was not necessary for plaintiffs to prove title beyond the common source; hence, if there was error in admitting said deed, it was harmless.

The appellant's third assignment of error complains of the action of the court in refusing to allow the defendant to introduce in evidence a copy of the judgment and report of the commissioners in the case of L. E. Holden v. E. J. Waldron et al., and the sheriff's deed made by virtue of the execution issued on the judgment for costs rendered in said cause. This judgment was objected to because: (1) That, at the time the judgment was rendered against W. T. Miller, he was dead; (2) the judgment is in the alternative, it being against W. T. Miller, or his heirs if he is dead; (3) the citation as to W. T. Miller only commanded publication...