Clark v. Clark

• Decision Date: 29 April 1899
• Citation: 51 S.W. 337
• Parties: CLARK et al. v. CLARK.
• Court: Texas Court of Appeals

51 S.W. 337

CLARK et al. v. CLARK.

Court of Civil Appeals of Texas.

April 29, 1899.

Appeal from district court, Red River county; E. D. McClellan, Judge.

Action by James Clark against Pat B. Clark and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Hale & Hale and Lenox & Lenox, for appellants. Dudley & Moore, for appellee.

BOOKHOUT, J.

Appellee, James Clark, brought this suit against appellants, Pat B. Clark and Mrs. Isabella Morrison, to recover certain real estate in Red River county, and in the town of Clarksville, part of the Henry Stout H. R. survey, alleged to be community property between his father, James Clark, and his mother, Isabella H. Gordon, née Clark. He asked for partition, and for an accounting by his brother Pat Clark, for what he had received from the community estate of their father and mother, and to be charged with what he himself had received therefrom; alleging that his mother had received and appropriated to her use largely more than her community interest in the property, and that his brother Pat had also received much more than his share of said property, and that he (plaintiff) was the true owner of the larger share of all the property of which his mother, Mrs. Gordon, died possessed, and his brother Pat Clark was entitled to the balance. He asked for partition, etc., alleging, aliunde, that his father, James Clark, died on the 2d day of May, 1838, leaving surviving him four children, to wit, plaintiff, Pat B. Clark, Frank Clark, and Sarah D. Clark; that Sarah D. Clark died in 1846, without issue; that Frank Clark died in 1856, leaving a widow and one child; that it died afterwards, without issue; that, at the death of James Clark, he owned, among other property, in community with his wife, I. H. Gordon, née Clark, plaintiff's mother, about 3,700 acres of the Henry Stout survey, where the town of Clarksville is now situated, worth about $14,000, besides some $6,000 worth of slaves; that his homestead was at his death on the Stout land, and that his widow and children continued to occupy it after his death, and his mother resided there until her death, about August, 1895, and that no partition of said community estate had ever been made; that Dr. Gordon died in 1872, leaving, surviving him, his widow (appellee's mother), and one child, the defendant Isabella H. Morrison. Plaintiff alleges, after the death of his father, his mother married Dr. George Gordon, and she still held and occupied the homestead until her death, in 1895, and that during all this time she held this land as tenant in common with her children by said James Clark, and in trust for them, to the extent of one-half, and had the use of it, and that she conveyed and used the proceeds of some land in Hopkins county, sold $6,000 worth of slaves, and that she had conveyed and sold off all of the Stout land at Clarksville, except about $14,000 worth of it, by selling lots in the town, which is shown, on exhibit to the petition, pages from 1 to 31, inclusive, and that the property so sold and conveyed by her was worth largely more than her one-half community interest in the estate, and that plaintiff and Pat Clark are entitled to all of it remaining unsold, but, Pat having received much more from the community than he, plaintiff was entitled to the larger share of the remainder. Alleges that Mrs. Gordon left a will, in which she bequeathed all of her property to the children of plaintiff, the children of Pat B. Clark, and the children of Mrs. I. H. Morrison (her grandchildren); that she left no debts, and there was no necessity for administration. Says Pat has received $6,000 and he $1,200 out of the community; that Pat B. Clark and Mrs. I. H. Morrison are claiming the property for themselves, and as executors of I. H. Gordon, for the benefit of the grandchildren as the legatees under the will, but that she had nothing to will, but that Pat and plaintiff are entitled to all of it as heirs of their father, subject to the advancements made to each out of it, heretofore made to each, respectively. Prayed that Pat B. Clark be charged with what he had received from the community, and the legatees under the will be charged with the community of James and Isabella H. Clark, and that they be adjudged to have no interest in the Stout survey by virtue of the will of Mrs. Gordon, and for partition. Plaintiff filed first supplemental petition, in which the interest of Lula Barry derived through Frank Clark was set up, and making her and her husband parties, and adopting, as against them, all the allegations made against the other defendants, and for partition. Then files a supplemental petition, making all the children of James Clark, plaintiff, and of Pat B. Clark and of Isabella H. Morrison, who are the legatees under the will, parties, and asking for partition. Then filed second supplemental petition, consisting of general demurrer, general denial, and that the property was all community between James and Isabella H. Clark, and that the widow and heirs of James Clark were tenants in common. All of said heirs and legatees appeared and answered, claiming under the will as legatees. Defendants Pat Clark and Mrs. I. H. Morrison, executors of the will, answered: (1) By exceptions on the ground of two and four years' statute of limitation. (2) General denial. (3) Set up the will and their qualification as executors. (4) That the real estate of Henry Stout, H. R., was the separate property of Mrs. I. H. Gordon, née Clark, and that she did not hold it in trust for any one, and that she bought and paid for the Stout certificate, by virtue of which it was located, with her own separate means, after the death of her husband, James Clark; that the land was surveyed for, and patented to, her after her husband's death; that she publicly and notoriously occupied and claimed the Stout land, and paid all taxes on it, up to the time of her death; that she sold it off in town lots, and otherwise, from time to time, and appropriated the money to her own use, and exercised various acts of ownership over it, from the time of its location, in 1838, to her death, and accepted a patent from the state for it, and had it duly recorded many years ago, during all which time plaintiff knew all about her claim and her acts, and that he lived in Red River county all the time from childhood up to this time, and that, with his knowledge, she had thus held and claimed the land for the 50 or 60 years, and the whole community knew of her so claiming the land, yet plaintiff set up no claim until after her death, nor had ever asked to be let into joint possession, or any possession, of the land, or any part thereof, nor contributed to its improvement. They pleaded the statute of limitations of 3, 5, and 10 years on plaintiff's claim to the land, and 2 and 4 years' limitation against his claim to the personal property; that the negroes were freed by action of the government; and the cattle that were used in building house on the homestead were the community property of Dr. Clark and his wife, Isabella. Pleaded stale demand against the recovery of the land, and that, if plaintiff ever had any interest in, or claim to, any part of the land, it was but an equity, and that his mother held under full legal title by virtue of a patent from the state, and location made by and for her, in her name. Pleaded that she and husband, Dr. Gordon, reared and educated plaintiff and Dr. Pat B. Clark, and used much of the personal property for their benefit, each getting his full share of it; that she administered on the estate of James Clark, deceased, paid the debts, and had but little left of proceeds of personal property; and that she had conveyed to James and Dr. Pat Clark a number of valuable tracts of land, which was community of herself and their father, and in the conveyance had given them her community half of each tract. Pleaded that plaintiff bought one of the lots from her in 1872, and she alone conveyed it to him, the deed reciting $800 consideration. In 1867 or 1868, plaintiff, James Clark, went into voluntary bankruptcy, and got a discharge from his debts, and he failed to put any interest in the Henry Stout survey on his schedule, and made the proper oath under law, and is estopped now to claim the land, or any part thereof. By way of cross bill, defendants set up that plaintiff's claim casts a cloud on the title of the legatees, and ask its removal; claims rent of homestead against plaintiff since he has been in possession; and prays judgment for the land for legatees under the will of their grandmother Mrs. I. H. Gordon; asks a writ of possession, and that there be made no partition, for costs, and for general relief. The legatees under the will adopt the answers of Pat B. Clark and Mrs. Morrison, executors of I. H. Gordon, deceased. The cause was tried and verdict rendered for plaintiff, and judgment rendered thereon, a motion for new trial overruled, and notice of appeal given by defendants. From this judgment Pat B. Clark (in his own right and as executor) and his children, Isabella Morrison (in her own right and as executrix) and her children, who claim under the will of Isabella Gordon, née Clark, appealed. F. H. Clark, Pat B. Clark, Jr., M. B. Young and her husband, T. H. Young, Lula Berry and her husband, Willis Berry, Lula M. Steel and her husband, Robert Steel, M. M. Clark and Jim Clark, minors, do not appeal.

Appellants' first assignment of error complains of the action of the court in admitting the testimony of plaintiff, in his own behalf, that he did not schedule or inventory his interest in the Henry Stout survey when he went into bankruptcy, in 1869, for the reason that his mother was in possession and exercising acts of ownership over it at the time, and he had told her prior thereto that she could sell any portion of the same, and that he would never disturb the title to the property so sold. The objection to...