Carnes v. Carnes
| Decision Date | 19 October 1901 |
| Citation | 64 S.W. 877 |
| Parties | CARNES v. CARNES. |
| Court | Texas Court of Appeals |
Appeal from district court, Comanche county; N. R. Lindsey, Judge.
Trespass to try title by C. W. Carnes against A. J. Carnes. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
J. H. McMillan, for appellant. G. H. Goodson, for appellee.
This was an action of trespass to try title brought by C. W. Carnes against A. J. Carnes in the district court of Comanche county on September 27, 1900, to recover title and possession of 148 acres of land lying in said county, wherein the plaintiff set forth both his title and that under which the defendant claimed substantially as follows: That in the year 1871 J. K. Simmons settled upon the land and pre-empted it for a homestead, making the affidavit required by law, and causing the same to be surveyed and field notes duly returned to the general land office; that plaintiff on the 5th day of June, 1895, held the title and claim of Simmons under mesne conveyances, and was in possession thereof by his tenants, one of whom was the said A. J. Carnes; that prior to said last-named date, to wit, on the 31st day of December, 1894, B. F. Walker, claiming to have settled upon said land, made the proper affidavit, and caused it to be surveyed and the field notes duly returned to the land office, and, in all respects complying with the law, claimed to have preempted the same for a homestead, and upon the said 5th day of June, 1895, the said Walker brought suit in the district court of Comanche county to recover the title and possession of said land from C. W. Carnes and his said tenant, A. J. Carnes, then in part possession, relying wholly and exclusively on his title and claim to same as a homestead pre-emption, and setting up the same in his petition; that said suit was numbered 1,307 on the docket of said court; that the said C. W. Carnes in his answer set up his title under Simmons, and each proved his title on the trial of that cause as alleged, when, on the 6th day of September, 1895, the cause was tried by the court, and judgment rendered that said Walker take nothing by his said suit, and that said C. W. Carnes and his tenants aforesaid go hence without day and recover all their costs from the said Walker; that afterwards, in 1897, Walker sold and conveyed his pre-emption claim aforesaid to the said A. J. Carnes, and upon the filing of the deed in the land office the commissioner patented the said land to the said A. J. Carnes as assignee of the said B, F. Walker, said patent issuing by virtue alone of the said preemption claim of the said Walker, and that all this the said A. J. Carnes well knew; that the judgment in said cause was never appealed from, but remained and is in full force and effect, and that the respective titles and claims of B. F. Walker under the homestead pre-emption claim aforesaid, and of the plaintiff, C. W. Carnes, were adjudicated and determined in that suit and by that judgment, and decided in favor of the plaintiff herein, C. W. Carnes, and that judgment against Walker, the vendor of A. J. Carnes, is pleaded and relied on by the plaintiff as title by estoppel against the said A. J. Carnes. The defendant pleaded the general denial and not guilty, and...
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