Burleson v. Burleson

• Citation: 28 Tex. 383
• Parties: JONATHAN BURLESON ET AL. v. JOHN BURLESON, JR., ET AL.
• Decision Date: 31 October 1866
• Court: Supreme Court of Texas

28 Tex. 383

JONATHAN BURLESON ET AL.

v.JOHN BURLESON, JR., ET AL.

Supreme Court of Texas.

October, 1866.

Depositions were objected to on the ground that the name of the officer was not written connectedly across the seal of the envelope, the two final letters being separated a quarter of an inch from the preceding ones: Held, that it being apparent that the last two letters were part of the name, and the name itself being intelligible, and there being no indication or pretense that the deposition had been tampered with, the objection was properly overruled. Pas. Dig. art. 3728, note 846.

Under the statute of limitation of three years, adverse possession by parties claiming land as joint tenants or tenants in common is as available and effectual as though each of them claimed his part by a title in severalty. Pas. Dig. art. 4622, note 1031.

The principal defendant, in explanation why a quit-claim transfer for the land in controversy had been made to him by his vendor, alleged that his vendor's only reason for not warranting the title was his understanding that other parties claimed the land: Held, that it was not error, under this averment, to permit the defendant to prove that a conflicting location was outstanding on the land at the time the transfer was made.

The principal defendant, by his answer and cross-bill, made a party defendant of his vendor, whose deposition had previously been taken by the plaintiffs: Held, that the witness having no disqualifying interest in the suit, and the deposition being otherwise free from objection, it was erroneous to exclude the deposition at the instance of the principal defendant.

The cause having been submitted to the jury on special issues, and the jury having returned into court with their finding thereon, and also with a general verdict in favor of the defendants, the opposing party moved the court to submit to the jury certain other special issues: Held, that these issues were not tendered in due time, and there was no error in refusing to submit them.

Special issues are to be made up under the direction of the court below, and its refusal to submit such issues will not be revised in this court, except when it is made apparent that the rights of the party tendering such issues were not attainable by a general verdict. Pas. Dig. art. 1469, note 565.

The plaintiffs, claiming as heirs of their deceased mother, sued their father's vendees for one-half the land, and for partition of the tract of land acquired from the state by virtue of a headright certificate, which pertained to the community estate of the plaintiff's parents. The defendants alleged that the grantee of the certificate, in the life-time of his wife, the mother of the plaintiffs, sold and transferred the certificate to a certain third person, who was not a party to the suit; and the court below instructed the jury, that the sale to such person created an outstanding paramount title, which debarred the plaintiffs from maintaining this action: Held, that the instruction was erroneous.

The defense of an outstanding paramount title is valid to a suit of trespass to try title, because the plaintiff must recover in that action on the strength of his own title, and not on the infirmity of his adversary's; but this rule is not applicable in an equitable proceeding for the partition of land. To import such a title into a proceeding of this nature, the defendants must make the holder of the outstanding title a party to the suit, so that the whole merits of the case may be adjudicated, or else they must show that they have acquired such title, or they must claim under it, or in some manner in connection with it. Hill v. Portis, 14 Tex. 75, cited by the court; Pas. Dig. art. 5307, note 1153; 8 Tex. 443;10 Tex. 503;14 Tex. 75.

When a deed purports to convey the “interest” which the grantor owns in the property conveyed, parol evidence is admissible to prove what that interest was.

The effect of an estoppel in pais is to prevent the assertion of an unequivocal right or to preclude a good defense, and justice demands that it shall not be enforced unless substantiated in every particular. The ground on which such an estoppel proceeds is actual or constructive fraud on the part of the person sought to be estopped.

If the real owner of property, without giving notice of his title, knowingly permit a third person to purchase the property in good faith from the apparent owner, he will be estopped from asserting his title against such innocent purchaser. So, if one person does an act in such a manner as intentionally to make another believe that he has no rights, or has abandoned such as he had, and the other, trusting to that belief, does an act which he otherwise would not have done, the fraudulent party will be estopped from asserting his right. 29 Tex. 53.

But in order to apply an estoppel of this character it is indispensable that the party standing by and concealing his rights should be fully apprised of them, and should, by his conduct or gross neglect, encourage or influence the purchaser; for if he be wholly ignorant of his rights, or if the purchaser knew them, or if the acts, or silence, or negligence of the party do not mislead the purchaser or in any manner affect the transaction, there can be no just inference of actual or constructive fraud, and no estoppel can result.

In this case, the principal defendant being, at the time of the purchase of the land in controversy, fully informed of the rights of the plaintiffs in it, and there being no evidence of any actual or constructive fraud on their part, inducing him to make the purchase, they should not be held to be estopped on account of their mere knowledge of the purchase, and their silence with regard to it at the time it was made.

After the death of the mother of the plaintiffs, their father transferred the community headright certificate to the principal defendant in this suit by a deed, the construction of which is controverted, as to whether it purported to convey only the father's interest or the entire interest both of himself and his deceased wife. This court declines determining the proper construction of the deed in this respect, but holds, that the patent obtained on the certificate by the principal defendant for the entire land constituted title from the sovereignty of the soil within the meaning of the statute of limitation of three years. Pearson v. Burditt, 26 Tex. 151, and Whitehead v. Foley, 28 Tex. 1, cited by the court; Pas. Dig. art. 4622, note 1031.

The laws of this state place the wife's property in the possession of the husband, and give him the management of it. He may sue for it in his own name, and it would seem to follow, that suits for property claimed by a married woman may well be instituted against her husband alone, so as to involve the rights and possession of the wife. It seems, therefore, that a suit instituted against a husband alone for land claimed by his wife stops the running of the statute of limitation in her favor. Pas. Dig. art. 4636, note 1043; art. 4621, note 1030.

Two of the plaintiffs had conveyed their interests in the land in controversy before the institution of this suit. Their vendees were not joined as original plaintiffs, but they subsequently intervened and asserted their rights: Held, that, as to their interests, the statute of limitation, if running previous to the suit, did not cease to run against them until they intervened. Before that time their interests were not in litigation.

The interest of another one of the original plaintiffs had, previous to the bringing of the suit, been conveyed by her to one of her co-plaintiffs, by whom, subsequent to the bringing of the suit, it was sold and conveyed to a third person, who thereupon also intervened for the assertion of his rights: Held, that as to this intervenor, he being a purchaser lis pendens, the statute of limitation ceased to run against his interest at the original institution of the suit, provided that previous thereto it had begun to run in favor of the defendants.

The rights asserted by the plaintiffs and intervenors are not unqualified or absolute, but can attach only to so much of the community property as remained in the hands of the survivor of the community after the payment of the community debts, if any there were. Any sales of the community property made by the survivor in good faith, for the purpose of paying such debts, or to reimburse himself for their payment out of his separate funds, will be sustained. Jones v. Jones, 15 Tex. 143, cited by the court; Pas. Dig. art. 4638, note 1045; 24 Tex. 582.

It is incumbent on the plaintiffs and intervenors to show the amount of the community property left at the death of the mother of the plaintiffs, whose interest they claim, and also what then became of such property. If any of them have received any part of such property by way of advancements, they must account for it; and if either of them have received from either of the members of the community an amount equal to his or her share of the community estate after the payment of the debts, he or she will not be entitled to any part of the land now in controversy. Pas. Dig. art. 4642, note 1949.

It must further be made to appear that there is a necessity for resorting to the land in controversy as the last resource for the satisfaction of the rights of the plaintiffs and intervenors. If the court can, in an equitable proceeding of this character, so marshal the community estate as to satisfy their rights, and at the same time afford protection to the purchasers under the survivor of the community, that course should be adopted. 15 Tex. 369 and 519, cited by the court; 18 id. 68; 20 id. 202; Pas. Dig. art. 4642, note 1049; 15 Tex. 519;20 Tex. 202.

APPEAL from Lampasas. The case was tried before Hon. EDWARD H. VONTRESS, one of the district judges.

The property involved covers the “Lampasas springs,” so called from...