Cope v. Blount

• Decision Date: 18 January 1906
• Citation: 90 S.W. 868
• Parties: COPE v. BLOUNT.
• Court: Texas Supreme Court

90 S.W. 868

COPE v. BLOUNT.

Supreme Court of Texas.

January 18, 1906.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by C. W. Cope against E. A. Blount. From a judgment for defendant, plaintiff appealed to the Court of Civil Appeals, which certifies questions. Answered in favor of defendant.

W. L. Douglass and E. B. Pickett, Jr., for appellant. Blount & Garrison, for appellee.

BROWN, J.

These are certified questions from the Court of Civil Appeals of the First Supreme Judicial District. The statement and questions are as follows:

"This is an action of trespass to try title, brought by appellant against the appellee. The land in controversy was originally granted to Philip Miller. Appellant claims in part as an heir of Lucinda Miller, who was the surviving wife of Philip Miller. Appellee claims under a deed executed by James Knight and Lucinda Miller, as `legal representatives of P. Miller, deceased,' to William D. Smith. This deed has a general covenant of warranty, and contains the following recitals: `Whereas, by a decree of the honorable probate court of the republic and county aforesaid, made on the 31st of August, A. D. 1840, by which the legal representatives of the estate of Philip Miller were authorized and empowered to make a title unto William D. Smith to one-half league of land, agreeable to the terms of a contract entered into by said Miller in his lifetime and said Smith: Now, therefore, know all men by these presents, that we, James Knight and Lucinda Miller, the legal representatives of the estate of Philip Miller, late of the republic and county aforesaid, deceased, by virtue of the authority aforesaid, and in consideration of the sum of $500.00 to us in hand paid, the receipt whereof is hereby acknowledged, have granted, bargained, sold,' etc. The date of the deed is September 2, 1840. It is acknowledged by the grantors in their representative capacity. The records of Liberty county were destroyed by fire in 1887, and none of the records or papers of the probate court of Liberty county in the administration of the estate of Philip Miller are now in existence. Lucinda Miller lived for a number of years after the execution of this deed, and it is not shown that she ever asserted any claim to the land. No taxes were ever paid on the land by her or by appellant. No one has ever been in actual possession of the property.

"Upon this statement of facts, which appear from the record in the above-styled cause now pending in this court on motion for rehearing, we...