Chinn v. Taylor

• Decision Date: 16 June 1885
• Docket Number: Case No. 5468.
• Citation: 64 Tex. 385
• Parties: ANN T. CHINN v. J. W. TAYLOR.
• Court: Texas Supreme Court

64 Tex. 385

ANN T. CHINN

v.J. W. TAYLOR.

Case No. 5468.

Supreme Court of Texas.

Jun. 16, 1885.

APPEAL from La Salle. Tried below before the Hon. D. P. Marr.

Appellants brought this suit in trespass to try title as well as for damages, and claimed judgment to recover of appellees survey No. 514, containing six hundred and forty acres, in La Salle county, Texas, originally granted and patented to the heirs of B. W. Toliver. Appellees filed pleas of not guilty and also in reconvention that appellants' claim was a cloud on the title of appellees to the land,--prayed that the same be removed and that they be quieted in their possession and title. Both parties claimed to deraign title through B. W. Toliver as a common source.

Appellants claimed through a donation certificate issued by the adjutant-general of Texas, June 4, 1851, to the heirs of B. W. Toliver, and a patent issued thereon to the heirs of said Toliver, these appellants, October 16, 1851; the patent reciting that it was issued to said heirs in consideration of said Toliver having fallen with Fannin at Goliad in 1836.

The appellees claimed under an administrator's deed, made January 6, 1852, by one Rutledge, administrator of B. W. Toliver, said administrator's deed being made pursuant to a sale of above mentioned certificate by the administrator under an order of the probate court of Harris county, made upon a petition filed by the administrator in said court October, 1851, and the sale was made December 2, 1851, and approved December 13, 1851, the deed being made to one Wm. R. Baker, from whom appellees claimed.

Appellants introduced in evidence a certified copy of the patent; proved their heirship to B. W. Toliver; that B. W. Toliver was killed at Goliad with Fannin in 1836, and offered to prove by the testimony of T. W. Toliver that B. W. Toliver was a volunteer from a foreign country in the armies of the republic of Texas, as alleged in the appellant's petition, and also that the heirs had never administered nor authorized administration on the estate of said B. W. Toliver; which being ruled out by the court, the appellants took a non-suit, and the court, over the objection of the appellants, proceeded to hear evidence offered by the appellees, and after the introduction by the appellees of the petition and order of sale and confirmation of sale from the Harris probate court, and of the administrator's deed, the court proceeded to give judgment for the appellees.

A witness, T. W. Toliver, had answered the third direct interrogatory, which inquired of him when and where B. W. Toliver fell. Afterwards, he was requested by a general interrogatory to state any matters “that might benefit either the plaintiff or defendant.” In answer to that question he proceeded “to supplement,” as he termed it, his answer to the third interrogatory, and then stated where his deceased brother volunteered for the defense of Texas, no direct or cross interrogatory having directed his attention to that matter; he also stated other matters vital to the plaintiff's case, to which his attention had been called by no interrogatory. The action of the court below, on objections being raised to the answer, is stated in the opinion.

Ellis & Herron and A. W. Dillard, for appellants, that the certificate not being in existence when Wm. R. Baker bought, he acquired no title, cited: Ross v. Early, 39 Tex., 390;Bradshaw v. Smith, 53 Tex., 474;Walters v. Jewett, 28 Tex., 192;Babb v. Carroll, 21 Tex., 766.

That letters granted on the estate of a deceased soldier were void, they cited: Hart. Dig., secs. 1053, 1054; Duncan v. Veal, 49 Tex., 603;Withers v. Patterson, 27 Tex., 491.

That cloud can only be removed from a title which is the paramount legal title, they cited: Deen v. Wills, 21 Tex., 642;Herrington v. Williams, 31 Tex., 448;Keys v. Mason, 44 Tex., 140;Stephens v. Hix, 38 Tex., 656;O'Neal v. Manning, 48 Tex., 403; Horton v. Smith, 18 How., 393.

That the certificate was a pure donation from the republic, and formed no part of the estate, they cited: Todd v. Masterson, 61 Tex., 618;Duncan v. Veal, 49 Tex., 603;Warnell v. Finch, 15 Tex., 163; Eastland v. Lester, 51 Tex., 98.

A. M. Jackson, Jr., and D. A. Nunn, for appellees, cited, in support of the action of the court below in excluding the evidence objected to: Dallam, 449.

In support of the probate sale, they cited: Guilford v. Love, 49 Tex., 715;Giddings v. Steele, 28 Tex., 733;Alexander v. Maverick, 18 Tex., 179;Murchison v. White, 54 Tex., 78;47 Tex., 343.

On stale demand, they cited: Hudson v. Jurnigan, 39 Tex., 579;Vogelsang v. Dougherty, 46 Tex., 466; and Johnson v. Newman, 43 Tex., 628.

WALKER, P. J. COM. APP.

The act of 1841, “to protect the rights of the heirs and next of kin to the members of the Georgia Battallion and other volunteers from foreign countries who have fallen in the battles of the republic, or otherwise died in the limits of the state,” forbade administration upon the estate of any such soldier by any other than his next of kin, unless such administrator produced an authority from the heirs or next of kin of such deceased soldier, authorizing him to take administration of the same. Art. 1398, Pasch. Dig. That act further provides that “where administration has been heretofore granted on the estates of deceased soldiers, to other than the heirs or next of kin of such soldiers, it shall not be lawful for such administrator to sell the lands of such deceased, without the consent or approbation of the heirs of such deceased soldier; the document relied on as evidence of such consent of said heirs to be recorded by the probate judge, he being satisfied of the genuineness of the same before granting a decree of sale to the administrator.” Art. 1399, Pasch. Dig.

The title from the administrator under which the appellees claim must, under this law, fail, whether the administration was taken before or after the passage of the act of 1841. If taken before, there was an absolute want of power of the probate court and the administrator to convey the lands of the deceased soldier, except by having the consent of the heirs given and recorded as the statute provides it shall be. If taken after, the court is powerless to grant letters to another than an heir or next of kin, and thereby assume jurisdiction over the property of the estate, except under the authority given by such heirs or next of kin.

The facts established, taken in connection with the public history of the country, show clearly that B. W. Toliver was a soldier in the army of the republic of Texas, and it is a fact familiar to history that many who fell at the massacre at Goliad were volunteers from foreign countries. T. W. Taliaferro, the brother of the deceased, testified, in depositions, fully to the fact that he was a volunteer from the state of Georgia when he fell at Goliad. Mrs. A. T. Chinn testified that he was massacred with Fannin's men at Goliad, in 1836. But the testimony of T. W. Taliaferro was excluded from the jury...