Crosby v. Ardoin

• Citation: 145 S.W. 709
• Parties: CROSBY v. ARDOIN et al.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 01 February 1912
• Court: Court of Appeals of Texas

145 S.W. 709

CROSBY v. ARDOIN et al.^†

Court of Civil Appeals of Texas. El Paso.

February 1, 1912.

Rehearing Denied March 20, 1912.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Trespass to try title by Josephine Crosby against Theo. W. Ardoin and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Jay Good and Stanton & Weeks, for appellant. Robert T. Neill and De Montel & Fly, for appellees.

HIGGINS, J.

This is an action of trespass to try title by appellant, plaintiff below, against appellees.

On October 4, 1838, the board of land commissioners of Houston county issued to William C. Stanley original headright certificate No. 173, for one league and labor of land.

On January 1, 1839, W. C. Stanley conveyed the same with a general warranty to T. B. Huling, which conveyance was acknowledged for record on July 2, 1853, before John Hamilton, notary public of Jasper county, and recorded in the deed records of El Paso county some time between May 10, 1859, and November 12, 1860; the record does not disclose the exact date the same was filed and recorded, but it was otherwise satisfactorily shown that it was at some time between the dates mentioned. Appellees, defendants below, claim title to the land in controversy under this transfer. On December 22, 1856, half of a league and half of a labor of land, the same being the property in controversy, situated in El Paso county, was patented to the said Stanley, and is known as survey No. 50 in section No. 1. The land was located, surveyed, and patented by virtue of duplicate certificate No. 2145/2246, issued by the Commissioner of the General Land Office on October 30, 1851, in lieu of said original headright certificate No. 173. The issuance of this duplicate certificate was secured by Stanley and was based upon an affidavit of the loss of the original. This duplicate certificate was issued under the provisions of act of January 14, 1840, and an amendatory act of May 11, 1846, both of which will be found in Gammell's Laws of Texas, vol. 2, at pages 242 and 1532, respectively. By conveyance dated November 17, 1851, Stanley, acting by his authorized agent, Adolphus Stern, conveyed the duplicate certificate to one Johnson, under whom appellant claims by mesne conveyances.

After the parties had concluded the introduction of their testimony, plaintiff took a nonsuit, and the court peremptorily instructed the jury to find for the defendants upon their cross-action over against the plaintiff.

On March 30, 1877, Elizabeth Huling, as survivor of the community estate of Thos. B. Huling, conveyed the land to W. C. Phillips. By deed dated May 21, 1880, W. C. Phillips conveyed to J. H. Phillips, and thereafter J. H. Phillips, for a consideration of $4,000 paid, by deed dated February 4, 1884, reconveyed the land to W. C. Phillips. In a certain cause pending in the district court of Travis county, wherein W. C. Phillips was plaintiff and J. H. Phillips and others were defendants, partitioning certain land therein described, the land in controversy was partitioned and set aside to W. T. Phillips. It appears from the recitals in the partition decrees that the land in controversy was the community property of W. C. Phillips, the plaintiff, and his deceased wife, Penelope Phillips. That Penelope Phillips died intestate October 7, 1882, and that the six defendants at the date of her death were her only living children. The first decree was dated October 20, 1886, and decreed that W. C. Phillips owned an undivided one-half interest in the property and the defendants each a one-sixth undivided interest, and ordered partition and appointed commissioners. The other decree was dated December 20, 1886, approved report of commissioners, and partitioned and set aside in severalty to W. T. Phillips the land in controversy, and by mesne conveyances the same passed to the defendants. Plaintiff objected to the introduction in evidence of these decrees rendered in the district court of Travis county, and by her first, eighth, and ninth assignments of error urges that she was a stranger to this partition suit, not bound by the recitals therein, and without such recitals there is no evidence to show: First, the marriage of W. C. Phillips and Penelope Phillips; second, the death of Penelope Phillips; third, the marriage of Fleecie H. Holmes and Walter H. Holmes, or the heirship of the defendants in the partition suit, viz., J. H. Phillips, Mary C. Phillips, Fleecie H. Holmes, Florida Phillips, Willie T. Phillips, and Walter D. Phillips; fourth, that the property was the community property of W. C. Phillips and Penelope Phillips; fifth, and assuming that such recitals were competent and sufficient to prove the facts above stated, the issues of fact thus made as to pedigree and the community status of the property involved were issues of fact which should have been submitted to the jury.

Aside from the recitals in above-mentioned decrees, it is insisted that there is no testimony which in any wise discloses that Penelope Phillips was the wife of W. C. Phillips; that she was dead; the marriage of Fleecie H. Holmes and Walter H. Holmes and heirship of the defendants in the partition suit; or that the property was the community property of W. C. Phillips.

Were it material to establish the facts shown by those recitals in the decree, it may be that the objection urged by appellant would be well taken. We express no opinion as to the sufficiency of those recitals as proof of the facts therein stated. As stated above, the land was conveyed to W. C. Phillips by J. H. Phillips by deed dated in 1884. Excluding from consideration, as it is contended by appellant should be done, the recitals in the judgment, then there is no evidence of any community status or of title thereto in any one except in W. C. Phillips. Title being thus vested apparently absolutely in W. C. Phillips, in a partition suit to which he was a party, a judgment was rendered which divested all of his right, title, and interest in the land and vested the same in W. T. Phillips. The partition decree was certainly admissible in evidence for the purpose of showing the divestiture of the title of W. C. Phillips, and, appellant objecting to the sufficiency of the recitals, there is then no evidence of any community claim, and the judgment passed the W. C. Phillips title to W. T. Phillips.

With reference to the fifth ground of objection urged, as stated above, it is apparent that, by her own objections and contentions urged against the legal sufficiency of the recitals in the partition decree, the only evidence of pedigree and the community status of the property was eliminated and the effect of the contention is that the property was the separate property of W. C. Phillips and his title by the partition decree was vested in W. T. Phillips. There was therefore no issue of pedigree or of the community status of the property in the case, and no issue of fact in regard thereto to be submitted to the jury.

Under the first assignment it is further contended that the recitals in the partition decree disclose that W. T. Phillips was then a minor, and it was incumbent therefore upon appellees to show that he was of age when he executed a conveyance of the land to Ella R. Burghardt on October 7, 1889. The final partition decree was dated December 20, 1886. We think it would be presumed that he was of age when he executed the conveyance, but, if such a presumption did not obtain, no one but W. T. Phillips could take any advantage of the fact that he was a minor at the date of the execution of the deed. The act of a minor is not void, but voidable only, and appellant could not avail herself of his minority, if he was, in fact, a minor when he executed the deed.

The second and third assignments of error do not point out the particular error upon part of the trial court complained of, nor do the subjoined propositions. They seem to be addressed to the proposition that if the cause is reversed it should be reversed and rendered instead of being reversed and remanded, and relate rather to the nature of the judgment to be here rendered than to any particular error on the part of the trial court. We doubt the sufficiency of the assignments to entitle them to any consideration, but have considered same and overrule them because we think the judgment should be affirmed.

The fourth assignment of error complains of the action of the trial court in refusing to direct a verdict for the plaintiff for four separate and distinct reasons stated in the assignment; the reasons urged practically embracing every material point on which the appeal is based, and is submitted as a proposition. Considered as a proposition, it is complex and multifarious and cannot be considered. Railway Co. v. White, 120 S. W. 958, and other cases cited by this court in opinion rendered at this term upon motion for rehearing in case of Hemphill v. National Iron & Steel Company, 142 S. W. 845.

Appellant by her fifth assignment of error complains that the court erred in admitting in evidence a certified copy of the transfer of original certificate No. 173 by William Stanley to Thos. B. Huling dated January 1, 1839, which was acknowledged before John Hamilton, a notary public of Jasper county, for the reasons set forth in first bill of exception. This assignment is first submitted as a proposition, and, referring to the bill of exception, we find 12 different objections urged to the admissibility of the instrument. As a proposition it is manifestly not entitled to consideration, and in passing upon this assignment we will confine ourselves to the objections raised by the subjoined propositions.

Appellant filed an affidavit of forgery attacking the authenticity of this transfer. As above stated, the instrument was dated January 1, 1839, and purports to have been acknowledged before John Hamilton, a notary public of Jasper...