Childress v. Robinson

• Court: Texas Court of Appeals
• Writing for the Court: Reese
• Citation: Childress v. Robinson, 161 S.W. 78 (Tex. App. 1913)
• Decision Date: 11 November 1913
• Parties: CHILDRESS v. ROBINSON et al.

161 S.W. 78

CHILDRESS v. ROBINSON et al.

Court of Civil Appeals of Texas. Galveston.

November 11, 1913.

Rehearing Denied December 4, 1913.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Action by Callie Childress against J. F. Robinson and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Dowell & Dowell, of Houston, for appellant. Sam, Bradley & Fogle, of Houston, for appellees.

REESE, J.

Callie Childress and her husband, G. D. Childress, instituted this action in the district court, against J. F. Robinson, joining in the action A. R. Anderson, sheriff of Harris county. Plaintiffs seek, under the ordinary allegations of an action of trespass to try title, to recover of defendant Robinson the title and possession of an undivided three-fourths of a certain tract of land, described in the petition, alleging that the plaintiff Callie Childress is the owner in fee simple thereof in her separate right as her separate estate, and was such owner on January 1, 1905. Petitioners further allege that the said Callie Childress has ever since the date aforesaid been the owner of said property as her separate estate; that on and ever since said date petitioners have been actually residing upon and occupying said property and claiming the same as their family homestead, with the dwelling house, fields, garden, and other improvements thereon; and that the said land is of the value of $2,000, and the rental value thereof is $8 per month. It is further alleged, in substance, that there has been placed in the hands of the defendant A. R. Anderson, as sheriff of Harris county, a certain writ of possession issued out of the district court of Harris county in and for the Eleventh district, in cause No. 43,570, wherein the said J. F. Robinson is plaintiff and the said G. D. Childress and others are defendants, of date July 1, 1911, commanding the said sheriff to place the said plaintiff Robinson in possession of the property above described; that the land embraced in said writ embraces the homestead of the said Callie Childress and her separate property as above described, and, unless said Anderson is restrained therefrom, he will at once dispossess plaintiff G. D. Childress and his family therefrom, to their great damage, wrong, and injury. It is further alleged that the said Callie Childress was not a party to said suit No. 43,570, and is in no way bound by said judgment, and was actually residing on said property as her separate property and homestead; that she is not named in said writ; and that there was no issue made in said suit of her homestead and separate property rights as herein set forth. Plaintiffs pray for the issuance of a writ of injunction restraining defendants from seeking to enforce said writ of possession.

Defendants answered by general demurrer and general denial and plea of not guilty, and by numerous special exceptions. They also pleaded that the matters and things in controversy had been adjudicated in cause No. 43,570 referred to in plaintiff's petition and pleaded the said judgment in bar of this action. Defendant Robinson also set up his title by cross-action and prayed for judgment, alleging that on, to wit, February 17, 1910, he recovered a judgment against G. D. Childress and others for the title and possession of said land; that plaintiff Callie Childress was, at the time of the rendition of said judgment, and is now, the wife of G. D. Childress; that upon appeal said judgment was affirmed and is now final and is an adjudication against plaintiffs of all matters set up in the petition; but that the plaintiffs are still in possession of said property and asserting claim thereto, which is a cloud upon defendant's title. By supplemental petition plaintiffs set up various exceptions, general and special, to the foregoing answer, and, by way of answer, repeated the allegations as to the homestead and separate property rights of the plaintiff, Callie Childress. The judgment does not state that any action was had upon the exceptions, general or special, of either party. The case was tried with the assistance of a jury, which, upon instruction of the court to return a verdict for defendant, so found. Upon the verdict judgment was rendered for defendant that plaintiffs take nothing and that defendant Robinson recover the land. From the judgment, their motion for a new trial having been overruled, plaintiffs prosecute this appeal.

The undisputed evidence presents the following state of facts: G. D. Childress and his wife, Callie, were married in 1890. In 1905 they bought, by verbal sale of D. A. Reynolds, the tract of land in controversy. They at once began to improve it for a home, and as soon as it was ready for occupancy they moved on it, and have continued to so occupy it as their homestead (except when it was temporarily occupied by tenants, but still claimed as their homestead) to the present time. Reynolds had been in possession of the land for several years before he sold to Childress. Plaintiffs introduced in evidence original grant of the John Austin two leagues, of which the land in controversy is a part, dated 1828; also, special warranty deed from D. A. Reynolds to G. D. Childress of the land in controversy, dated November 9, 1909. Reynolds testified that he had been occupying the land adversely about three years before plaintiffs came to live on it, which was in 1904 or 1905. Mrs. Childress testified that at the date of the institution of the suit No. 43,570 of Robinson v. Childress et al., which date she fixes at August 27, 1907, Reynolds had lived on the land two or three years. Reynolds, testifying for plaintiffs, stated that when he sold the land to G. D. Childress it was his understanding that it was community property of him and his wife. There was introduced in evidence by plaintiffs copy of the judgment in cause No. 43,570 in the Eleventh district court of Harris county, entitled J. F. Robinson v. T. B. Mitchell et al. This judgment was rendered on the 7th day of January, 1910, and by the terms of the judgment J. F. Robinson, the plaintiff in that suit, who is the defendant in the present suit, recovered judgment against T. B. Mitchell, D. A. Reynolds, and G. D. Childress, L. J. O'Connor, J. E. Parker, and J. A. Parker for a tract of 53.7 acres of land, an undivided three-fourths of which is the subject-matter of this suit. The judgment recites that the defendants Mitchell, Reynolds, and Childress appeared in person and by their attorneys. Callie Childress was not a party to said suit. See 136 S. W. 501, showing affirmance of this judgment. These are all the facts shown by the statement of facts.

Appellants undertook to prove by their testimony, in substance, that at the time the verbal purchase of the land from Reynolds in 1905, G. D. Childress, the husband, made a verbal gift of it to his wife as her separate property, and that she owned and claimed it as such. All of this testimony seems to have been excluded by the court. Nevertheless appellants in their brief state as uncontroverted facts "that on the date of the purchase of the property from Reynolds in 1905, by verbal deed of gift, G. D. Childress gave his wife all his interest in the land as her separate estate, and she was from that date up to the present time owning, occupying, and claiming it as her separate property homestead." It is also stated as one of the "uncontroverted facts" that on October 29, 1912, G. D. Childress made a written confirmation deed to his wife, Callie Childress, of the former verbal gift, which was duly recorded." No such fact appears in the evidence, but it appears that this deed was executed after this suit was filed, and was excluded on objection of appellee.

Objection is made by appellee to the consideration of each of the 23 assignments of error; the objections being substantially the same to each of them, that the assignments are not followed by any proposition or sufficient statement from the record as required by rules 30 and 31. Appellants seem to be of the opinion that the act of the Thirty-Third Legislature (chapter 136, p. 276, art. 1612, R. S. of 1911), which provides that an assignment of error "shall be sufficient which directs the attention of the court to the error complained of," abrogates the rules referred to. It was held by this court, in the case of Conn v. Rosamond, 161 S. W. 73 (opinion filed the 29th day of October, 1913) that this statute was in conflict with rule 25, which requires that assignments of error "must refer to that portion of the motion for a new trial in which the error is complained of," and that an assignment shall be sufficient which directs the attention of the court to the error complained of, but which did not refer to the motion for a new trial as required by rule 25 (142 S. W. xii). In this connection, however, it is said: "We do not intend to hold that the rules governing briefs which require that each assignment must be followed by a proposition and sufficient statement from the record conflict with the statute." The act in question was not intended to do away with the requirements of rules 30 and 31 (142 S. W. xiii), which require that "each point under each assignment shall be stated as a proposition unless the assignment itself may sufficiently disclose the point, in which event it shall be sufficient to copy the assignment." Rule 31: "To each * * * proposition there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. This statement must be made faithfully, in reference to the whole of that which is in the record having a bearing upon said proposition, upon the professional responsibility of the counsel who makes it, and without intermixing with it arguments, reasons, conclusions, or inferences." This language seems...