Childress v. Grim
| Decision Date | 01 May 1882 |
| Docket Number | Case No. 3192. |
| Citation | 57 Tex. 56 |
| Parties | MARY M. CHILDRESS ET AL. v. C. GRIM. |
| Court | Texas Supreme Court |
ERROR from Guadalupe. Tried below before J. F. Miller, Esq., special judge.
Suit filed October 17, 1874, by plaintiffs in error, Mary M. Childress, joined by her husband, James Childress, and Elenora Herndon, joined by her husband, J. C. Herndon, to recover of defendant in error a half interest in a tract of one hundred acres of land in Guadalupe county, and for partition.
December 10, 1874, defendant answered by a general denial, plea of the statute of limitations of three years, and further pleaded res adjudicata.
Plaintiffs were the children of Emily C. and Joseph M. Brown, both deceased, and claimed one-half of the land as the heirs of their mother. Joseph M. and Emily C. Brown left other children, as follows: James D. Brown, who died unmarried; Clara C. Brown, who married W. T. Hall, and died in 1867, leaving one child, viz., Clara C. Hall, a minor; and Emma C. Brown, who afterwards married W. T. Hall, and died, leaving two children, both minors, Oscar and Walter Hall. These minors were made parties to this suit. July 6, 1875, plaintiffs amended, alleging a mistake in their former pleadings, and claimed the whole of the land as the heirs of their mother, and alleging that it was her separate property, and excepting to defendant's pleas of limitation and res adjudicata.
July 19, 1875, defendant renewed his pleas of limitation and res adjudicata.
July 23, 1875, defendant further answered that the land in dispute was paid for by the sale of a negro, the property of Joseph M. Brown, under whom defendant claimed; that this negro, with a number of others, was conveyed in 1845 by the father and mother of Joseph M. Brown to Emily C. Brown, the mother of plaintiffs and wife of Joseph M.; and their defense was that these negroes, though conveyed to Emily C., were really intended for Joseph M.; that Emily C. held them in trust for him, and that after her death he had a right to exchange the negro for the land in dispute, which he did, as is admitted in the record. The judgment which was thus pleaded in bar was rendered in the district court of Guadalupe county in 1860, in a suit brought by J. C. Herndon et al. (plaintiffs in this suit) against Joseph M. Brown (under whom defendant claims by mesne conveyances), for the negroes and this tract of land. From the papers which were introduced in that cause and were introduced in this cause by agreement of counsel, it appears that Joseph M. Brown, in the former suit, claimed the property as his separate property, under the conveyance of 1845. The judgment was in his favor, and defendant pleads that judgment in bar of plaintiffs in this suit. But in that suit plaintiffs before the trial dismissed as to the land here sued for.
The presiding judge declined to sit in this case because he had been of counsel for a part of the plaintiffs in the former suit; and to this action plaintiffs excepted, and the parties chose a special judge. It was admitted that the title to the land was perfect down to A. Swift, who conveyed it to Emily C. Brown, and that the consideration paid to Swift by her was one of the negroes conveyed to her by James W. and Margaret Brown, the parents of Joseph M. By agreement, defendant was permitted to introduce the depositions of Margaret Brown, the mother, and of Wm. M. Brown, a brother of Joseph M. Brown, to show what was the real purpose of the conveyance of the negroes to Emily C. Brown; defendant contending that the conveyance was to her in trust for Joseph M.
The cause was tried before a jury December 10, 1875, and verdict and judgment were for defendant. The depositions above referred to were taken and read in the former suit.
John Ireland, for plaintiffs in error.
W. E. Goodrich, for defendant in error.
The charge of the court is too long to be copied into this opinion. It presents to the jury every phase of the case as it appears in the pleading and evidence. The assignments of error, nine in number, relate mainly to the charge of the court, and point out very clearly several parts of it which appellants regard as erroneous. The first assignment, however, relates to the action of the presiding judge in declining to sit in the case. We do not think this assignment well taken. The judge had been of counsel for some of these plaintiffs (or for parties whose interest some of these plaintiffs now claim) in a former suit, so...
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