Churchill Jones' Heirs v. James Paul's Heirs

• Decision Date: 26 February 1883
• Docket Number: Case No. 944.
• Citation: 59 Tex. 41
• Parties: CHURCHILL JONES' HEIRS v. JAMES PAUL'S HEIRS.
• Court: Texas Supreme Court

59 Tex. 41

CHURCHILL JONES' HEIRS

v.JAMES PAUL'S HEIRS.

Case No. 944.

Supreme Court of Texas.

Feb. 26, 1883.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

Suit brought November 23, 1874, by the heirs at law of Churchill Jones against the heirs at law and devisees of James Paul, deceased. The plaintiffs alleged that February 7, 1852, James Paul gave a bond to make to Churchill Jones a good title to two tracts of land in Milam district,--six hundred and forty acres patented to heirs of John Batterly, July 18, 1846, and about seven hundred and five acres patented to Harvey Homan, September 2, 1847, on the payment of note of Jones for $2,821, January 1, 1855, with interest from January 1, 1854. That the note was paid, and Paul made deed to Jones, April 25, 1855, conveying the land with covenant to forever warrant and defend the title and possession. That at the time of making the deed, Paul was not lawfully seized in fee of the premises, but one Hanrick was the lawful owner thereof. That neither Paul, nor his heirs or assigns, had, though often requested, warranted and defended the title to said land, but the title was still in said Hanrick, who held adversely to plaintiffs. That the amount paid for said seven hundred and five acres to which said Paul did not have title was $1,473.45, which amount defendants were justly indebted to plaintiffs, with interest from January 1, 1854. That it was only during the year 1872 that it came to plaintiffs' knowledge that the title to said land was invalid, and paramount in another than said Paul, deceased, at the date of said deed. Said land is not occupied by plaintiffs nor any other person, nor has the same ever been occupied; is in an unsettled portion of said county, and that all the time, up to the year 1872, they had confidence in their said title, until in that year, when, on having the county surveyor establish the boundaries of same, they found it was all, except about thirty-five acres, embraced within the bounds of another and prior grant. The defendant James M. Paul demurred, on the ground that no cause of action was stated and no right to relief shown, and the defendants Wilson on the same grounds.

November 13, 1877, plaintiffs filed amended petition, stating anew their entire case; that plaintiffs were the children and grandchildren of said Churchill Jones; that Albert and George Ball were executors of James Paul, deceased, and that the administration of said estate was closed and the executors discharged in May, 1868; that the defendant Hannah Wilson received from said Paul real estate in Galveston county, worth $40,000; defendants Hannah, Robert and Matthew received real estate in said county worth $60,000, and James M. Paul worth $50,000, specifying all said property, and being about four-fifths of said estate; makes his will an exhibit; alleges that other defendants are all insolvent, and have no property liable to execution; that among the clauses of warranty in said deed from Paul to Jones are the covenant of lawful seizin at the time of the conveyance; of good right, full power and lawful authority to sell and convey; for peaceable and quiet enjoyment of the premises, and of warranty of title against all persons lawfully claiming the same; that five hundred and ninety and four-tenths acres of the Homan tract is now owned and claimed by Edward Hanrick and those who are holding under him, who are seized in fee thereof under and by virtue of a prior valid grant to Pedro Zarza; and eighty-two and two-tenths acres of said Homan tract are claimed by William Bryant and those holding under him, who are seized in fee thereof by virtue of a survey prior to that of said Homan, and a patent duly issued thereon; and said land is in conflict with and incumbered by said prior grants, leaving only thirty-two and four-tenths acres clear under said Homan title; that one Leonard Magee is in possession of four hundred acres of said five hundred and ninety and four-tenths acres conflicting with said Homan title, and claims and holds under both the said Zarza and Bryant titles; that failure of said Homan title by reason of said conflict was not known to said Churchill Jones nor to plaintiffs until after his death; that plaintiffs are in great danger of ejection from said Homan tract, except thirty-two and four-tenths acres, by said Edward Hanrick and those claiming under him, and by said Bryant and those claiming under him, and specially by said Leonard Magee, claiming and in actual possession as aforesaid; and defendants, though requested, refused to warrant and defend said Homan title against said prior and conflicting titles; that Churchill Jones died intestate in October, 1869, leaving no minor heirs, and no debts, and there had been no administration on his estate; that the validity of said Zarza title was not adjudicated upon until December term, 1870, of the supreme court of the United States, where, in the suit of Hanrick against Neily and others, it was adjudged a valid title. Said Magee claims under said Zarza title by deed dated April 8, 1875.

The defendant James M. Paul then alleged further grounds of demurrer:

1. That the court had no jurisdiction, and suit should be brought in Falls county.

2. No dispossession or eviction shown.

3. Cause of action sued on was barred by limitation.

4. It was a stale demand, barred by laches and lapse of time.

5. No facts shown to explain or excuse the delay or lapse of time.

6. Facts averred insufficient to account for or excuse laches and delay. Possession under Zarza title and by Magee was alleged, but not alleged when possession commenced.

7. No facts or circumstances alleged such as would cause making surveys or issuing titles by the public officers of the state and produce an unknown and unsuspected conflict of boundaries, and excuse the lapse of time in acquiring knowledge thereof, and seeking remedy therefor; or as would produce the belief that some adjustment thereof had not been made between the parties in their life-time; and that the demand sued on is stale and unconscionable.

9. Plaintiffs show that the demand of plaintiffs is not personal against defendants or any of them, and they show possession of the property alleged to have been received by the defendant from the estate of James Paul, deceased, adverse to plaintiffs for more than three years, and for more than five years, before suit brought, under sovereignty of the soil.

The court sustained the demurrer, on the ground that the suit was barred by limitation, being of opinion that the parties having elected to consider themselves ousted or evicted by reason of the alleged superior outstanding title, and never having been in possession, and having so long neglected to make such election, cannot now be permitted to make such election, except subject to limitations, as they have not alleged sufficient cause for their delay, and that consequently their attitude was different from that of a party suffering actual eviction, against which the...