Crumbley v. Busse

• Decision Date: 23 October 1895
• Citation: 32 S.W. 438
• Parties: CRUMBLEY et al. v. BUSSE et al.
• Court: Texas Court of Appeals

32 S.W. 438

CRUMBLEY et al. v. BUSSE et al.

Court of Civil Appeals of Texas.

October 23, 1895.

Appeal from district court, McCulloch county; J. O. Woodward, Judge.

Action by Mrs. F. Busse and others against G. J. Crumbley and others to quiet title. From a judgment for plaintiffs, defendants appeal. Affirmed.

Action of trespass to try title by appellees, Mrs. F. Busse, Alma Busse, Walter Busse, Paul Busse, Emil Busse, and John Busse, against G. J. Crumbley, H. J. Crumbley, and T. M. Crumbley, for 320 acres of land, known as "Survey No. 203," patented to Ernest Giesecke, January 10, 1860 (patent No. 324, vol. 25), particularly described by metes and bounds in the petition which was filed July 27, 1893. November 21, 1893, H. J. Crumbley and T. M. Crumbley answered by pleas of not guilty, statute of limitations of five and ten years, and claims for improvements in good faith. None of the pleas or the claims for improvements described any particular part of the land sued for. Plaintiffs, April 23, 1894, replied, setting up coverture of Mrs. Busse during a part of the time of defendants' possession, and the minority of other defendants when the statute commenced to run, who are still minors. April 24, 1894, a jury was waived, and the case was tried by the court, and judgment was rendered for plaintiffs, from which defendants H. J. and T. M. Crumbley have appealed.

Plaintiffs' title, as shown by the evidence, consists of: (1) Patent by the state to Ernest Giesecke, issued January 10, 1860, for the land sued for. (2) Administration upon the estate of Ernest Giesecke, Harris county, Tex., by Theodore Giesecke, who filed inventory and bond November 6 and 28, 1859; petition to sell the land situated in Fisher & Miller's colony; headright certificate possessed by Ernest Giesecke, filed January 20, 1860; order of sale by probate court granted to the administrator January term, 1860, to sell the certificate of 320 acres of land in Fisher & Miller's colony, at public outcry, on credit of 12 months; report of sale by the administrator of 320 acres of land in Fisher & Miller's colony, granted to Ernest Giesecke as an emigrant, dated March 26, 1860, showing a sale of the land certificate of 320 acres of land in Fisher & Miller's colony to Frederick Giesecke, for a valuable consideration; approval of the sale of all the interest, right, and title of the estate to the certificate of 320 acres of land in Fisher & Miller's colony, approved March term, 1860; deed of the administrator to Frederick Giesecke, dated November 28, 1860, conveying the estate's title to the 320 acres of land, describing the same, and setting out in full the decree of confirmation of the sale. (3) Deed from G. F. Giesecke (proved to be the same as Frederick Giesecke, who bought the land at administrator's sale) to F. Busse, dated April 20, 1892, conveying the survey in suit. (4) Mrs. Frederick Busse, one of the plaintiffs, is the surviving wife of Frederick, or F., Busse, deceased, to whom the land was sold by the administrator of estate of Ernest Giesecke, deceased. Mrs. Busse and F. Busse were married the 1st of February, 1867. The land in suit was their community property. The other plaintiffs were children of the marriage, born: John, February 26, 1868; Emil, November 10, 1872; Alma, February 26, 1876; Tol Busse, October 11, 1878; Walter, January 11, 1881. There was another child born to them, Joseph Busse, born April 7, 1871, who died December 5, 1876. None of the children were married. The F. Giesecke or G. F. Giesecke was a brother of deceased Ernest Giesecke, to whom the land was patented, and who died in Houston, Tex., in 1854.

No testimony was introduced by defendants. They offered testimony, but, upon objections to the same by plaintiffs, it was excluded.

Bill of exceptions No. 1, reserved by defendants to the ruling of the court, shows that defendants offered to read in evidence the following tax deed, dated July 11, 1878: "The State of Texas, County of McCulloch. Know all men by these presents: That whereas, certain taxes are due the state of Texas and the county of McCulloch by F. Busse, as assessed against him for the year 1877, upon the following described tract or parcel of land, viz.: Abstract 884; original grantee, Ernest Giesecke; No. acres, 320,— which taxes amount to the sum of four dollars and eighty cents, as appears from the tax rolls of McCulloch county for the year 1877; and whereas, the time provided by law for the payment of said tax having expired, and, though demanded of the said F. Busse by proper legal notice of the same, running unpaid, I, H. T. Eubank, tax collector of McCulloch county, in compliance with the law, and by virtue of the tax rolls aforesaid, have levied upon and seized a certain tract of land as belonging to the said F. Busse, and heretofore described, to be sold to make said amount of said tax yet unpaid, together with costs accruing, and have advertised the said lands in the manner and for the time required by law; and whereas, in pursuance with the said advertisement, I did offer said lands for sale at public auction at the time and place and in the manner required by law, when J. C. Copeland bid the sum of four dollars and eighty cents for 320 acres of said land, which sum being sufficient to make the said amount of said unpaid paid taxes, together with ____ dollars and ____ cents, penalty, and five dollars ____ cents, costs accruing thereon, and the cost of this deed, which being the highest and best bid offered for the least number of acres of said land, the same was struck off to him, the said J. C. Copeland: Now, therefore, and in consideration of the sum of nine dollars and eighty cents to me in hand paid, the receipt of which is hereby acknowledged, I have by virtue of the power in me vested by law and by these presents have bargained, sold, transferred, and conveyed, and by these presents do bargain, sell, transfer, and convey, unto him, the said J. C. Copeland, his heirs and assigns, all the right, title, interest, and estate which the said F. Busse had at the time when the said assessment heretofore mentioned was made, to the following described tract or parcel of land, viz.: Abstract No. 324; original grantee, Ernest Giesecke, in McCulloch county,—to have and to hold, unto him, the said J. C. Copeland, his heirs and assigns, the above and foregoing tract of land, together with all and singular the right, privileges, and appurtenances to the same belonging or in any wise incident thereto, in fee simple, forever; provided, nevertheless, the said land here conveyed may be redeemed by the said F. Busse, owner, by his heirs or legal representatives, within two years from this date, in the manner prescribed by law. Witness my hand and seal of office, this the 11th day of July, 1878. [Signed] H. T. Eubank, Tax Collector of McCulloch County." This deed was duly acknowledged and recorded in deed records of McCulloch county, Tex., on the 4th September, 1878, in regular form. Plaintiffs objected to the introduction of the deed, because it did not describe the lands in controversy, and because the taxes appeared to have been assessed on abstract 884, and the sale conveyed or pretended to convey a different tract, viz. abstract 324, which objection was by the court sustained. Defendants excepted to the ruling.

Bill of exceptions No. 2 shows that defendants offered in evidence two deeds executed by J. C. Copeland and wife, Elizabeth Copeland, —one dated October 31, 1884, conveying to T. M. Crumbley and H. J. Crumbley 240 acres of the land in controversy, described as 240 acres to be taken out of the north end of survey No. 203, abstract No. 379, of Ernest Giesecke's original survey of 320 acres, leaving and reserving 80 acres in said survey to be taken out of the south end for "our" homestead, recorded in deed records of McCulloch county May 13, 1889; the other deed dated September 1, 1886, conveying to T. M. Crumbley "the balance of said tract, it being 80 acres more or less," recorded September 9, 1892, in record of deeds of McCulloch county. Plaintiff's objected to these deeds as evidence, and the court excluded them, as shown by the court's indorsement on the bill, upon the ground that "the answer showed joint ownership, and owned improvements jointly, and did not set out the improvements claimed by each separately."

Defendants' bill of exception No. 3 shows that they offered to prove in support of their pleas of five and ten years' statute of limitations, by T....