Culmore v. Genove

• Decision Date: 23 November 1893
• Citation: 24 S.W. 83
• Parties: CULMORE et al. v. GENOVE et al.
• Court: Texas Court of Appeals

24 S.W. 83

CULMORE et al. v. GENOVE et al.

Court of Civil Appeals of Texas.

November 23, 1893.

Appeal from district court, Harris county; James Masterson, Judge.

Trespass to try title by Caroline Genove and others against B. Culmore and others. From a judgment in plaintiffs' favor, defendants appeal. Affirmed.

E. P. Hamblen, for appellants. A. C. Allen and Oliver & Oliver, for appellees.

GARRETT, C. J.

This is an action of trespass to try title brought by the appellees to recover of appellants a tract of 9 1/8 acres of land situated near the city of Houston, in Harris county. Plaintiffs are the widow and heirs of August Genove, deceased. In order to show common source of title, they put in evidence a judgment in favor of Charles Culmore and Nat Cook against August Genove, and a constable's deed thereunder to Henry Culmore, and a deed by him to the defendants, with parol evidence to show that the defendants claimed the land in controversy as the land sought to be conveyed by said deed. Defendants offered the same deed in evidence to show title in themselves but, on objection by plaintiff that it was void for uncertainty in the description of the land, it was excluded by the court. A deed from August Genove to Gottlieb Muller was put in evidence by the defendants to show outstanding title, but this was met with testimony that the deed had never been delivered. The matters in controversy were submitted to the court without a jury, and judgment was rendered in favor of the plaintiffs for the recovery of the land. Defendants have appealed, and assigned as errors (1) that the plaintiffs failed to show common source, because the constable's deed offered for that purpose does not convey the land sued for; and (2) that the evidence showed outstanding title in Gottlieb Muller.

The following are the facts shown on the trial: (1) A conveyance of the land in 1860 to a former wife of August Genove, during her marriage with him, and her death without issue, by which he became her sole heir. (2) Plaintiffs are the widow and children of August Genove, who died intestate in Harris county in 1881. There was never any administration on his estate. (3) On August 12, 1861, August Genove signed an instrument purporting to convey the land in controversy to Gottlieb Muller, which he acknowledged before a notary. This instrument was recorded on the same day in the record of deeds of Harris county. It was placed on record by mistake of the notary, and without the authority, knowledge, or consent of August Genove, who had possession of it during his lifetime. It was never out of Genove's possession, and was kept with other deeds to the land by Mrs. Genove all the time, as she testified. Muller lived in Germany, and has for a long time been dead. Mrs. Genove testified that she and her husband sometimes got along badly, and he made the deed, in an angry fit, to beat her. (4) Charles Culmore and Nat Cook recovered a judgment April 4, 1877, against August Genove, in justice court, and there was an attempted sale of the land thereunder at constable's sale. The judgment and constable's deed to Henry Culmore, a deed referred to for description in the constable's deed, and a deed from Henry Culmore to the defendants, were put in evidence to show common source of title. (5) The constable's deed is dated June 6, 1877. It is regular on its face, and purports to convey the following described land: "Ten acres of land (less one acre formerly conveyed) on Little White Oak bayou, about 1½ miles...