Burns v. Goff

• Decision Date: 13 January 1891
• Citation: 14 S.W. 1009
• Parties: BURNS v. GOFF.
• Court: Texas Supreme Court

14 S.W. 1009

BURNS v. GOFF.

Supreme Court of Texas.

January 13, 1891.

Appeal from district court, Goliad county.

Browne & Burns, for appellant. Patton, Lane & Mayfield, for appellee.

STAYTON, C. J.

This action was brought by appellant, as guardian of R. H. and Virgie Richeson, sole surviving children of Virginia Richeson, deceased, to secure an undivided interest in the tract of land in controversy. The petition contained the following averments: "Plaintiff avers that he and defendant claim title to said premises through a common source, to-wit, Virginia Richeson, (née Hord,) the mother of plaintiff's wards, from whom said premises descended to said wards, and defendant is hereby notified that plaintiff will offer in evidence on the trial of this cause certified copies of the following deeds, each conveying said land, to prove said common source, the originals being in defendant's possession, to-wit: Deed from M. T. Tippen to defendant, of date of November 14, 1887; deed from R. N. Ewell, a pretended guardian of these wards, to M. T. Tippen, dated February 5, A. D. 1884." The defendant pleaded not guilty, and denied that he claimed the land through the deeds mentioned, but asserted right in himself, and alleged, if he had not the title, that the same still remained in Landon Webster, to whom the land was patented. The plaintiff offered the patent in evidence, and then offered the two deeds referred to in his pleadings, which were excluded on objection made by defendant, whereupon a judgment was rendered in his favor. One of these deeds purported to be a deed made by R. N. Ewell, as guardian of plaintiff's wards, in pursuance of an order of a chancery court in Kentucky directing Ewell, as guardian, to execute it, and the deed on its face purported to convey the lands sued for. While this deed does not, in terms, recite that the wards claimed the land by inheritance from their deceased mother, Virginia, the recitals are such as reasonably raise the inference that such was the basis of her children's right. The other was a deed from M. T. Tippen, to the defendant conveying the land in controversy, as well as other lands, to defendant, with only special warranty as to the land in controversy. The objections to these deeds were: "(1) There was a variance between the allegations and the proof of common source. (2) Because the deed from R. N. Ewell, guardian, to M. T. Tippen did not convey land, but only a chance thereto. (3) Because a deed by a foreign guardian, by order of a foreign court, could not be used to show a common source." The last two objections were sustained. We are of opinion that all the objections should have been overruled. If the recitals in the deed from Ewell, guardian, were not sufficient to show...