Cornell v. Mabe

• Decision Date: 26 October 1953
• Docket Number: No. 14478.,14478.
• Citation: 206 F.2d 514
• Parties: CORNELL et al. v. MABE et al. MABE et al. v. CORNELL et al.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 514 (1953)

CORNELL et al. v. MABE et al.

MABE et al. v. CORNELL et al.

No. 14478.

United States Court of Appeals Fifth Circuit.

August 6, 1953.

Rehearing Denied October 26, 1953.

Barker & Barker, Owen D. Barker, Doyle McDonald, Thos. H. Dent, Louise C. Rowen and Herminie McDonald Hanson, Galveston, Tex., for appellants-appellees.

Thomas H. Lee and James W. Lee, Houston, Tex. (Williams, Lee & Kennerly, Jesse J. Lee and Irl F. Kennerly, Houston, Tex., of counsel), for appellees-appellants, Gladys Justice Mabe, and husband.

Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.

RUSSELL, Circuit Judge.

In the latter part of 1896, or in the early part of 1897, Leveston Justice moved into the house with Mary Sanders and her family in Galveston, Texas, as a boarder. Mary had a daughter named Hattie who lived with her. A few months before Leveston appeared on the scene Hattie had given birth to a son, Benny, who was apparently born out of wedlock. It was not long before Leveston's status as a boarder developed into a relationship somewhat more entrenched, for in 1898 Hattie gave birth to another son, Claude, which Leveston acknowledged as his child. A daughter, Gladys, was born May 31, 1900. Hattie and Leveston lived on one side of the house and her mother and brother lived on the other side. When the house in which they lived was destroyed by a storm in 1900, shortly after Gladys was born, Hattie and Leveston moved into another house. Hattie went by the name of Hattie Justice during this time and was considered by the members of her family and others as Leveston's wife.

It is not disclosed how long Hattie and Leveston lived together, but in the latter part of 1901 they had separated and Leveston was living in the house with another man. On September 27, 1902, Leveston procured a marriage license to marry one Sallie Carter, but they were never married. On December 7, 1903, he married Willie Etta Simmons. They were divorced on April 7, 1906. Leveston was married to Ida Lee on September 14, 1908, and they continued to live together until his death. Hattie married Frank Burton in March, 1910, under the name of Hattie Sanders. She died on some undisclosed date in "Harrisburg." Although there is no record of a ceremonial marriage having been performed between Hattie and Leveston, and no record of their having been divorced, during his lifetime Leveston recognized Claude, who died in 1925, and Gladys as his children.

Leveston died intestate on February 22, 1936. At the time of his death, he and Ida, who has since remarried and is known as Ida Justice Cornell, owned as community property a ten acre tract of land in La Marque, Galveston County, Texas, on which they resided. After Leveston's death, Ida continued to occupy the property as her homestead. In 1940, she subdivided a portion of the ten acre tract into seven lots numbered consecutively 1 to 7. A plat of this subdivision was filed for record on April 4, 1940. At a later date she subdivided other portions of the original tract into additional building lots. All of the lots thus subdivided, except the one on which her house was situated, were subsequently sold. The first sale of lots was made to Ed and Pearl Morgan by a deed dated October 22, 1940, which was filed for record the following day. This deed purported to convey lots 1 and 2 of the first subdivision; however, by reason of a mutual mistake, the Morgans took possession of lots 6 and 7 and have held exclusive and adverse possession to those lots since the date of the conveyance.

On October 9, 1951, Gladys Justice Mabe, joined by her husband, residents of Pennsylvania, claiming to be the only living child of Leveston at the time of his death, instituted this action against Ida Justice Cornell and 49 other persons who owned record title to the lots purchased from Ida out of the original ten acre tract, all residents of Texas, to recover an undivided one-half interest in the property, and for other relief. Jurisdiction depends upon diversity of citizenship and a controversy involving an amount in excess of $3,000 exclusive of interest and costs. 28 U.S.C.A. § 1332.

The primary issue joined by the pleadings was whether Gladys was the legitimate child and heir at law of Leveston Justice, born of a common law marriage between him and Hattie Sanders. The court, with the consent of counsel, severed this issue from the remaining issues involved and submitted it to a jury. The verdict on this issue was for the plaintiffs. The remaining issues were tried to the court, which determined, inter alia, that the plea of limitations interposed by the Morgans under the Texas ten year statute of limitations should be sustained. Judgment was entered decreeing that the plaintiffs have and recover an undivided one-half interest in the land in question, save and except lots 6 and 7, which were adjudged to be vested in the Morgans, and another lot which is not now in question. All of the parties have appealed.

The value of the property retained by Ida Justice Cornell was stipulated to be $7,100, one half of which Gladys claimed by inheritance. The remaining defendants hold title to either one, two or four lots each, the agreed values of which indicate that the value of the interest asserted by plaintiffs against the property owned by each of them, considered individually, is less than $3,000. However, the value of the entire original tract of land is approximately $50,000, thus, the value of the interest claimed by plaintiffs is approximately $25,000. During the course of the trial, all of the defendants except Ida moved the court for dismissal of the suit as to them, since as to each of them the matter in controversy did not exceed $3,000. They excepted to the overruling of this motion. The object of this suit was not to enforce against each of the defendants a separate and distinct claim, nor was it to recover an undivided interest in a number of lots of land claimed by the individual defendants. The complaint alleged that Gladys was the equitable owner of an individed interest in a single ten acre tract of land and that she had been unlawfully deprived of the possession and use of such property. Unquestionably, the matter in dispute is the whole of the property and not the individual lots into which it has been subdivided. These defendants contend, however, that the court erred in overruling their motions to dismiss because the suit involves severable and distinct controversies, each of which involves less than the jurisdictional amount. They cite and rely upon Cooper v. Preston, C.C., 105 F. 403, and Bates v. Carpentier, C.C., 98 F. 452. Those two cases do not deal with a situation where, as here, the defendants' interests were derived from a common source of title. It is true that where a suit is brought against several defendants asserting claims against each of them which are separate and distinct, the test of jurisdiction is the amount of each claim, and not their aggregate. However, when the action is to recover a single tract of land and the several defendants claim under a common source of title, the matter in controversy is the entire tract of land and not its several parts. The trial court properly overruled the defendants' plea to its jurisdiction.

The defendants complain of the failure of the court to...