Cole v. Grigsby

• Decision Date: 25 April 1894
• Citation: 35 S.W. 680
• Parties: COLE et al. v. GRIGSBY et al. (MOSER, Intervener).
• Court: Texas Court of Appeals

35 S.W. 680

COLE et al. v. GRIGSBY et al. (MOSER, Intervener).

Court of Civil Appeals of Texas.

April 25, 1894.

Appeal from district court, Dallas county; Sam R. Frost, Special Judge.

Action by D. B. Grigsby and others against John H. Cole and others. From the judgment Chris Moser, who had intervened, and Cole and others appeal. Modified.

The following statement of the case by appellees is found to be substantially correct, and is adopted:

The present appeal is from a judgment rendered November 25, 1891, in the district court of the Fourteenth judicial district of Texas in and for Dallas county, in a suit numbered and styled upon the docket of that court as follows, to wit: "No. 2,262. D. B. Grigsby et al. vs. W. H. Bowles et al." The appellants are John H. Cole, Franzeska Meisterhans and her husband, Charles Meisterhans, Chris Moser, and R. F. Aspley. The appellees are D. B. Grigsby, Maria Louisa Swindle, and her husband, C. C. Swindle. The appellees are the plaintiffs in said suit. The appellants John H. Cole and Franzeska Meisterhans and husband are defendants. The appellant Chris Moser is an intervener. The only other appellant, R. F. Aspley, was sued as a defendant, and in his earlier pleadings he so styles himself, but he now styles himself a plaintiff. There are many other defendants in said suit, and in the judgment now appealed from appellees recovered a judgment against a large number of them, but none have appealed, except the appellants above named. The suit is one of trespass to try title and for partition, and was begun August 18, A. D. 1874.

The petition alleges, in the usual form, that the plaintiff D. B. Grigsby is the owner of an undivided two-eighteenths, and the plaintiff Maria Louisa Swindle the owner of an undivided three-eighteenths, of two certain tracts of land in Dallas county, both fully described by metes and bounds; one being a survey of 640 acres patented to the heirs of John Grigsby, assignee of James A. Sylvester, and the other being all of the John Grigsby headright league and labor survey, except 733 acres sold by said John Grigsby to John Parker, 200 acres sold by him to Thomas Madden, and 1,000 acres set apart to Crawford Grigsby, as his locative interest in said league and labor. The title to the said 733 acres, 200 acres, and 1,000 acres, however, was not perfected in the vendees thereof till after the death of John Grigsby. That defendants, among them, own the remaining undivided thirteen-eighteenths of said land; the defendant Robert F. Aspley owning two of said thirteen eighteenths, and none of the defendants except Aspley owning an interest in the whole of said land, but being confined and limited in their ownership to an undivided interest in certain portions of said land. That defendants have ejected plaintiffs from said land; and pray for the relief usually prayed for in suits of a similar character. The petition does not allege anything in regard to plaintiffs' title, further than that they own an undivided interest in the land, as above stated. The only particulars in which the petition in any way differs from any ordinary petition in a suit of this character is that, in addition to what we have above stated, it contains these further averments: "Plaintiffs further aver that, if any of the defendants herein who claim any particular portion of the above land in severalty desire a trial of the issues herein involved, with reference to the particular portion of the above-described land in which they may be so interested, at any earlier period than will be possible for all parties to this suit to be served with citation herein, plaintiffs are willing that the court shall grant a severance to any of the defendants who have already answered, or who may answer and desire a trial, as aforesaid, provided the same can be done without prejudice to the rights of plaintiffs, and provided that the defendants so desiring a severance will set forth, by metes and bounds, the particular portion of the above-described land in which they are interested, and in which none of the other defendants are interested. Plaintiffs further aver and show to the court that the several portions of said tracts of land in which the several defendants are, at the institution of this suit, separately interested, and to which their respective interests are confined, as aforesaid, are meted and bounded as follows." (Then follows the description of the several parcels of land.) The petition then avers that a large number of the defendants, naming them, "while they are trespassers, as hereinbefore charged, do not, at the date of the institution of this suit, have any right, title, or interest in any part of the hereinabove described land, that plaintiffs have been able to discover; wherefore, as against said defendants last named, plaintiffs pray judgment, as aforesaid, in so far as this is a suit of trespass to try title, but plaintiffs do not seek a partition with any of said last-named defendants, unless they, or either of them, can make it appear that they have some interest to be partitioned." The petition further says: "Plaintiffs further aver that they are willing that, in the partition sought by them, the court may, if it can do so without prejudice to the rights of plaintiffs, set out to plaintiffs their proportion out of each of the several portions of said tracts of land in which the defendants are separately interested, and to which their respective interests are confined, as aforesaid."

As before stated, the appellant R. F. Aspley, although sued as a defendant, and in his earlier pleadings styling himself a defendant, practically occupies the position of a plaintiff, and in his pleadings, now on file, so styles himself. He does not contest the plaintiffs' right to recover, but seeks to recover from his co-defendants an undivided interest in the lands described in plaintiffs' petition. The appellees, by demurrer, objected to Aspley's styling himself a plaintiff, but the court overruled the objection, to which appellees excepted.

The appellant John H. Cole claims to be the owner of certain portions of the land described in plaintiffs' petition, describing by metes and bounds the portion so claimed by him, and disclaiming ownership of, or any interest in, the balance of the land described in plaintiffs' petition, and as to the part claimed by him he pleads not guilty, limitation of three, five, and ten years, and improvements in good faith; and follows these pleas with a plea which he says is "for the purpose of partition only," and in which he alleges that, in the event of a partition being decreed, other persons ought to be made parties to the suit, and alleges certain supposed facts, which he avers ought to control in making a partition.

The appellants Franzeska Meisterhans and husband claim to be the owners of certain portions of the land described in plaintiffs' petition, describing by metes and bounds the portions so claimed by them, and disclaiming as to all the balance of the land described in plaintiffs' petition, and as to the part claimed by them they plead not guilty, and limitation of three, five, and ten years. They specially insist that the institution of the suit in 1874 did not interrupt the running of the statute of limitations as to them, because, as they aver, they were not made parties to the suit until February 28, 1891.

The appellant Chris Moser, who intervened in May, 1888, claims to own certain portions of the land described in plaintiffs' petition, describing by metes and bounds the portion so claimed by him, and disclaiming as to all the balance of the land described in plaintiffs' petition, and, as to the part claimed by him, his pleadings consist of demurrers, general denial, plea of not guilty, limitation of three, five, and ten years, stale demand, and improvements in good faith. He further specially insists that, at the time of the institution of this suit in 1874, the land claimed by him belonged to one Emily G. Caruth, one of the defendants in plaintiffs' original petition; that she died in 1879; that the land was sold by her administrator, and was subsequently bought by the intervener; that there was no service of citation on Emily G. Caruth, and none on her administrator, until after intervener's purchase; and that, by reason of these facts, the running of the statute of limitations was not interrupted by the filing of plaintiffs' petition, but continued to run until the filing of intervener's plea of intervention in 1888.

The plaintiffs filed four supplemental petitions, in which, among other things, they pleaded disability of minority and coverture, and other answers, to the defense of limitations. Prior to the trial, which resulted in the judgment now appealed from, there had been trials between the plaintiffs and some of the other defendants, resulting in the appeals reported in 57 Tex. 142, 259, 269; 68 Tex. 235, 4 S. W. 474; 68 Tex. 242, 4 S. W. 478; and 84 Tex. 240, 19 S. W. 343. The present appeal is the result of a trial which began October 5, 1891. On that day, the case being regularly called, plaintiffs announced "Ready," and defendants "Not ready." Some of the defendants asked and were granted a continuance, but the application of appellants Cole, Meisterhans, and Moser for a continuance was overruled. The case, having thereupon gone to trial between the plaintiffs and appellants and others of the defendants, was submitted to the jury November 24, 1891, and the next day they returned their verdict, and the judgment was rendered which is now appealed from. No issues were submitted to the jury, except in so far as this is a suit of trespass to try title, the court charging, in regard to partition, as follows: "The question of partition will not be considered by you, since, if from the evidence before you, under the instructions herein given, you should find that the plaintiffs, or either of them, are entitled to recover, a...