Calhoun v. Burton

• Decision Date: 20 October 1885
• Docket Number: Case No. 1863.
• Citation: 64 Tex. 510
• Parties: SUSAN CALHOUN ET AL. v. A. G. BURTON ET AL.
• Court: Texas Supreme Court

64 Tex. 510

SUSAN CALHOUN ET AL.

v.A. G. BURTON ET AL.

Case No. 1863.

Supreme Court of Texas.

Oct. 20, 1885.

APPEAL from Anderson. Tried below before the Hon. F. A. Williams.

The opinion states the facts.

Thos. B. Greenwood, for appellants, on the issues discussed in the opinion, cited: Dunn v. Dunn, 82 Ind., 43;Rose v. Colter, 76 Ind., 590;Evans v. Hamilton, 56 Ind., 34;Sherman v. Hogland, 54 Ind., 578;Pence v. Croan, 51 Ind., 336;Jackson v. Post, 15 Wend. (N. Y.), 588;Phillips v. Wooster, 36 N. Y., 412;Bank of U. S. v. Houseman, 6 Paige (N. Y.), 526;Fox v. Moyer, 54 N. Y., 125;Van Wyck v. Seward, 6 Paige (N. Y.), 62;Jackson v. Miner, 101 Ill., 554;Seward v. Jackson, 8 Cow., 455, 456; Stewart v. Rogers, 25 Ia., 395; Gidley v. Watson, 53 Ill., 193; Wenchester v. Charter, 97 Mass., 149;R. S., arts. 3192, 3196, 3207; Towns v. Harris, 13 Tex., 516;Reynolds v. Lansford, 16 Tex., 291;Compton v. Perry, 23 Tex., 414;Martel v. Somers, 26 Tex., 551;Belt v. Raguet, 27 Tex., 471-481;Pearson v. Burditt, 26 Tex., 172;Charle v. Saffold, 13 Tex., 95;League v. Rogan, 59 Tex., 427.

Gammage & Gregg, for appellees, cited: Weisiger v. Chisholm, 28 Tex., 780;Layton v. Hall, 25 Tex., 204;Kelly v. Madden, 26 Tex., 48;Able v. Lee, 6 Tex., 427;Woods v. Chambers, 20 Tex., 247; R. S., art. 2465; Belt v. Raguet, 27 Tex., 471;4 Day (Conn.), 284;Beach v. Catlin, 4 Am. Dec., 221.

STAYTON, ASSOCIATE JUSTICE.

Many questions are presented by the assignments of error and brief of counsel in this case which in the view taken of the case it will not be necessary to consider.

The controlling question in the case arises upon the following facts:

Jesse Calhoun died on January 17, 1878, and on March 20, of the same year, administration was taken out on his estate, since which time the estate has been in course of administration.

All of the appellees probated claims against his estate prior to February 4, 1879, except one, whose claim was probated May 20, 1879, and on April 12, 1884, they brought this action against Susan Calhoun, Eugenia Aycock, her husband, and E. C. Horn, who was then the administrator of the estate of Jesse Calhoun, to have declared subject to sale, to satisfy their claims, a tract of land conveyed to Sarah A. Ledbetter by Jesse Calhoun on January 11, 1878, which was by Miss Ledbetter conveyed to Susan Calhoun and Eugenia Aycock on February 19, 1878, upon the ground that the conveyance from Calhoun to Miss Ledbetter was voluntary, and made with intent to defraud his creditors.

The deed to Miss Ledbetter purported to be upon valuable consideration, was executed on the 11th of January, 1878, and on the same day recorded.

The deed from Miss Ledbetter to Susan Calhoun and Eugenia Aycock did not purport to be upon valuable consideration, was executed February 19, 1878, and recorded on the 25th of the same month, and under these deeds they have been in the continuous and adverse possession of the land since sometime in the month of February, 1878, during which time they have paid the taxes on six hundred acres of the tract, which contained about eight hundred acres.

The petition alleges that the conveyance made to Miss Ledbetter,and the conveyance made by her to Susan Calhoun and Eugenia Aycock, were without valuable consideration, and that th?? two conveyances were but one transaction, through which the parties to them intended to vest title to the property in Mrs. Calhoun and Mrs. Aycock, who were the heirs of Jesse Calhoun, with intent upon the part of all to defraud his creditors.

It further alleged that the land so conveyed constituted the bulk of the estate of Calhoun, and that it was of the value of $15,000, and the proof shows that the land was worth about $8,000; the petition, however, does not negative the fact that the plaintiffs had knowledge, at the time the administration began, of all the facts which they allege to be true in these respects.

They also allege that the inventories of the estate, filed from time to time by the different administrators of the estate, none of which embraced the property in controversy, showed property belonging to the estate appraised at about $5,000, besides claims on various persons amounting to about $8,000, which were thought to be of but little value, and that after the sale of a few tracts of land of but little value “the bulk of the estate remained on hand until the month of May, 1883, and that during said month and subsequent thereto the administrator of said estate has sold off and disposed of all of said estate, and that said property, by reason of defective titles and stringency in money market at the times of sales, and from other causes, sold for mere nominal prices, and that all of said property which was inventoried at about $5,000 did not sell for more than enough to pay the costs of said administration, and that said estate is now hopelessly insolvent and will not pay off the debts of these plaintiffs.”

“That these plaintiffs, seeing the amounts at which the property of said estate was inventoried, and not knowing that the titles to said property were doubtful up to the time of the sale of said property, supposed there would be ample property belonging to said estate to pay off their debts in full, and up to said time said estate appeared to be solvent.”

The petition further alleged that Miss Ledbetter, Susan Calhoun and Eugenia Aycock knew that the title to the property inventoried was doubtful, but there was no proof whatever of such knowledge on their part; in fact, the proof offered on the trial was wholly insufficient to show what the state of the title to the property inventoried was.

There is no averment of any diligence used by the plaintiffs to ascertain the true state of the title to the property inventoried, nor of concealment or attempt at concealment, by the defendants, of any fact of which they had knowledge or means of knowledge other than had the plaintiffs, which would have thrown any light upon the true condition of the estate as to solvency or insolvency.

The defendants, with other defenses, pleaded the bar of the statutes of limitation of three and five years, and on the trial proved a regular chain of title to themselves from the sovereignty of the soil, and to these pleas there was no replication.

The court gave no charges presenting these issues to the jury, under which they might, by a general finding, have determined the case in favor of the defendants; but, in this respect, submitted special issues, and under those which related to the different periods of limitation pleaded, the jury, in effect, found that the defendants had the possession necessary to bar the claim of the plaintiffs, if such defense could be sustained under the facts of the case; but the first issue, which related to limitation arising from three years' possession under title from the government, was defective, in that the charge did not embrace all the facts necessary to sustain such a defense.

The jury found, under the general charge given, that the conveyances under which the defendants claim were void, and a judgment was entered declaring the land, less two hundred acres, the homestead interest of Calhoun, subject to sale, in due course of administration, for the payment of the claims of the several plaintiffs; and the court overruled a motion to enter judgment in favor of defendants on the findings upon the special issues.

The defendants asked the following instructions, which the court refused to give:

“1st. If the jury believe from the evidence that the defendants have had the adverse and exclusive possession of the land in controversy for three years next prior to this suit, claiming the same under a regular chain of title, you will find for the defendants; and the court charges you that this suit was brought on the 12th day of April, 1884; and that the grant from Coahuila and Texas to Samuel G. Wells; 2d. Wells and wife's deed to Moses Cox; 3d. Cox's deed to John Calhoun; 4th. Last will of John Calhoun to Jesse Calhoun; 5th. Deed from Jesse Calhoun to S. A. Ledbetter; and 6th. Deed of S. A. Ledbetter to Susan and Eugene Calhoun,--constitute a chain of title from the government to the defendants.

2d. The jury are instructed that if they find from the evidence that the defendants have been adversely occupying, using, enjoying and cultivating the said land for five years prior to the 12th day of April, 1884, and paying the taxes thereon to the government under a deed or deeds duly registered, you will find for the defendants.”

1st. “That a creditor seeking equitable relief against a deed of conveyance to land, made by his debtor, is chargeable with laches from the time it was or ought to have been discovered, and if the jury find from the evidence in this case that the deeds under which the defendants claim were recorded soon after their execution, this would be constructive notice to the plaintiffs of their execution, from the date of their record, and if the plaintiffs allowed defendants to occupy said lands for three years prior to the bringing of...