Cole v. Grigsby

• Decision Date: 17 February 1896
• Citation: 35 S.W. 792
• Parties: COLE v. GRIGSBY et al.
• Court: Texas Supreme Court

Page 792

35 S.W. 792

COLE v. GRIGSBY et al.

Supreme Court of Texas.

February 17, 1896.

Error from court of civil appeals of Fifth supreme judicial district.

Action by D. B. Grigsby and others against John H. Cole and others. From the judgment rendered, defendant Cole appealed to the court of civil appeals (35 S. W. 680) where the judgment was affirmed in part. He brings error. Affirmed.

R. D. Coughanour, A. S. Lathrop, John Bookhout, and Chas. I. Evans, for plaintiff in error. Richard Morgan and Jeff Word, for defendants in error.

BROWN, J.

Of the many grounds of error presented, we deem it necessary to consider but one; and, as applicable to that one, the following statement of the facts will be sufficient for its discussion:

The land involved in the case, as presented to this court, is a part of a league and labor headright survey granted to John Grigsby, which was the community property of himself and his wife, Louisa Grigsby. John Grigsby died in 1841, after which, in the year 1842, the patent for the land was issued by the republic of Texas in the name of the said John Grigsby. At his death, John Grigsby left, surviving him, seven children by a former marriage. Two children by his wife Louisa also survived him; one of the children of the latter marriage being Daniel B. Grigsby, one of the plaintiffs in the court below, and the other the mother of R. J. Aspley, who was made a defendant in the original suit, but whose right was recognized, and he was subsequently treated as a co-plaintiff. After the death of John Grigsby, his surviving widow married Bales Eden, of which marriage the plaintiff Maria Louisa Swindle, née Eden, was born in 1843; and within a few days thereafter her mother, Louisa, died. Administration was had upon the estate of John Grigsby, and in the year 1848 the land was partitioned by order of the probate court of Anderson county among the nine children of John Grigsby; no notice being taken of the interest of Louisa in making the partition, and nothing given to her child by Eden. The land was divided among the parties as the heirs of John Grigsby, deceased. The plaintiffs below sued the defendant Cole and many others to partition lands in this survey and another, claiming the interest that they inherited from their mother, to which Cole pleaded, among other things, the statute of three years' limitation. To a number of the tracts of land embraced in this survey, plaintiff in error Cole showed regular chain of title from the heirs of John Grigsby, as it was set apart and partitioned by the court as above stated. It is not denied that, as to some of these tracts, his proof of title and possession was sufficient to sustain his plea of limitation, if it were applicable to the case as shown by the evidence. It is unnecessary to go into a detailed statement of the facts of this case for the purposes of this investigation. Cole asked the court below to give to the jury a charge on the three-years statute of limitation, which was in proper form, and was refused by the court, which refusal was sustained by the court of civil appeals as to the land embraced in the survey patented in the name of John Grigsby, for the reason that, so far as the interest of the plaintiffs as the heirs of their mother was concerned, the statute of three years' limitation would...