Dancy v. Peyton

• Decision Date: 11 March 1926
• Docket Number: (No. 321.)
• Citation: Dancy v. Peyton, 282 S.W. 819 (Tex. App. 1926)
• Parties: DANCY et al. v. PEYTON et al.
• Court: Texas Court of Appeals

282 S.W. 819

DANCY et al. v. PEYTON et al.

(No. 321.)

Court of Civil Appeals of Texas. Waco.

March 11, 1926.

Rehearing Denied April 15, 1926.

Appeal from District Court, Limestone County; A. M. Blackmon, Judge.

Trespass to try title by Mattie Dancy and others against F. L. Peyton, Jr., and others. From the judgment, plaintiffs appeal. Affirmed.

Ralph W. Plummer, W. Owen Dailey, and K. C. Barkley, all of Houston, and Ira Lawley, of Groesbeck, for appellants.

W. W. Ballew, of Corsicana, and A. C. Scurlock and Gib Callaway, both of Dallas, for appellees.

BARCUS, J.

This suit was instituted by appellants in the form of a trespass to try title to 40 acres of land in Limestone county, on which some valuable oil wells are located. The real issue involved in the litigation is one of heirship. The cause was tried to a jury and submitted on special issues, and appellants, being dissatisfied with the portion of land awarded them, have appealed.

Appellants claimed to own the entire tract of land as heirs of or purchasers from Felix and Mattie Dancy, and by the 10-year statute of limitation. Felix and Mattie Dancy were negroes. They were married in 1874, and of that union two children were born, being two of the appellants herein, and there was no controversy about them and those who hold under them owning an undivided one-half interest in the property in question. John Dancy claims that in 1866 Felix Dancy and his mother, Marzella, were married according to slave marriages, and that he was the child of said marriage. The jury found that Marzella and Felix Dancy were never husband and wife. The court rendered judgment against John Dancy, and there is no appeal from that portion of the judgment. Ella Baker claimed that her mother, Judie Whittaker, married Felix Dancy in 1868, and that she was Felix Dancy's child by said union, and the jury so found. Appellee Cleve Calloway, who purchased Ella Baker's interest, alleged in his petition that Ella Baker was one of four children of Felix Dancy, and claimed her one-fourth interest in the property.

By their first proposition, appellants attack the jury's findings of fact to the effect that Felix Dancy and Judie Whittaker were married and that Ella Baker was born from said union, as being against the preponderance of the testimony. The larger part of the 280-page statement of facts is devoted to testimony with reference to said issue. Some of the witnesses testified that they were present and saw Felix Dancy and Judie Whittaker married, and gave the details thereof and the name of the preacher who performed the ceremony. There is an abundance of evidence to support the findings of the jury on said issue. This assignment is overruled. Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 688; Moore v. Porter, 281 S. W. 232, recently decided by this court, not yet reported.

Appellants challenge the action of the trial court in refusing to quash the deposition of the witness Mrs. Tyus. Appellants asked that said deposition be quashed because the original depositions were propounded by the defendant John Dancy and his codefendant, Cleve Calloway, and plaintiffs each filed cross-interrogatories; that when the commission to take the deposition was issued by the clerk the copy of plaintiffs' cross-interrogatories was not attached. After the deposition was taken but before being returned into court, it was discovered that the cross-interrogatories of plaintiffs had not been attached, and the clerk then gave to the notary a certified copy of said cross-interrogatories, which the notary attached to the original commission and took the depositions on the direct as well as the cross interrogatories of all parties. There was no injury shown and no allegation of misconduct on the part of the notary or the clerk or any one in connection therewith. The fact that when the commission was originally issued the clerk failed to attach copies of the cross-interrogatories of all the various parties was not sufficient to cause the deposition to be quashed, where no injury is claimed and where it is shown that a copy of the crosses was finally attached to the commission and the depositions were taken. Schunior v. Russell, 18 S. W. 484, 83 Tex. 83. If we are mistaken in our holding on this, then the introduction of the testimony was harmless, since it was offered on behalf of and only went to the legitimacy of John Dancy as a child of Felix Dancy, and does not in any way relate to or affect the legitimacy of Ella Baker, and John Dancy having been eliminated by the finding of the jury, it would not be ground for reversal of the cause as between appellants and appellees herein.

Appellants challenge the action of the trial court in permitting the appellee Cleve Calloway, after the jury had returned its verdict, to file a trial amendment, claiming a one-third interest in the property rather than a one-fourth interest. The jury had found that John Dancy was not a legitimate child, and under the findings of the jury there were only three children of Felix Dancy, namely, Ella Baker and the two children of Felix and Mattie Dancy. There was no error in the court's permitting this amendment to be filed since no additional facts were needed and no injury to appellants was shown to have been occasioned thereby. Johnson v. Bingham (Tex. Civ. App.) 251 S. W. 529; Id. (Tex. Com. App.) 265 S. W. 130; Rea v. Johnson, (Tex. Civ. App.) 270 S. W. 1077.

Appellants challenge the action of the trial court in permitting John Dancy to testify that he received certain letters from Ella Baker, and to the court's having permitted him to offer in evidence an ex parte statement by Susanna Smith to the effect that her husband and Marzella, the mother of John Dancy, were brother and sister, and that Marzella and Felix Dancy were married during the war, and that John was their son; said statement having been made by her in January, 1922, when she was about 80 years of age, she at the time of the trial being dead. Appellants only objected to said statement because it was made by a person not related to any of the parties and was made after the controversy in question began and after attorneys had been employed. As against said objections, we do not think the court committed error in admitting said statement. Byers v. Wallace, 28 S. W. 1056, 29 S. W. 760, 87 Tex. 503. The testimony of Dancy with reference to having received letters from his half-sister, Ella Baker, did not pretend to give any of the details thereof, but was just a general statement that he had received letters from her and that he had corresponded with her. This we think was admissible. Further, all this testimony was offered by John Dancy and related entirely to his claim of heirship, and does not in any way affect the interests between appellants and appellees.

Appellants challenge the action of the trial court in permitting to be read in evidence the delinquent tax record of 1878 of Limestone county, which shows that the 40 acres of land in controversy was rendered for taxes in the name of Felix Dancy. Appellants themselves had the tax assessor to testify from the records that the land in controversy was rendered from 1886 to 1890 and from 1895 to 1900 by Felix Dancy, and had him give in detail the names of the parties who had rendered said property for each of the years since 1885 to 1913. The tax assessor was permitted without objection to testify in connection with his other testimony that the records showed that the property was rendered in the name of Felix Dancy in 1878. In the light of the entire record, we do not think appellants were harmed by the book having been offered in evidence.

Appellant's proposition No. 15 is that "the court should have submitted to the jury, under appropriate instructions, the question of limitation." There was no request made by appellants that said issue be submitted to the jury, and in the absence of a request having been made therefor, appellants cannot complain. St. Louis S. W. R. Co. v. Preston (Tex. Com. App.) 228 S. W. 928; El Paso Printing Co. v. Glick (Tex. Com. App.) 263 S. W. 260.

Appellants' proposition No. 17 is that the "court erred in admitting over their objection plaintiffs' petition in cause No. 4038-A, Mattie Dancy, by Next Friend, J. R. Todd, v. Joseph Danciger et al." It does not appear from the statement of facts filed herein that said petition was as a matter of fact offered in evidence. If, however, same was offered as is stated in the bill of exception, there was no error. The pleadings complained of were filed in a suit by Mattie Dancy involving title to the property in question, and in which she alleged the property was community property of herself and her deceased husband, Felix Dancy, and same were admissible in evidence against all the appellants who claim title under her as admissions against interests. Sabinal Nat. Bank v. Cunningham (Tex. Civ. App.) 256 S. W. 317.

We have examined the testimony offered by appellants on motion for rehearing with reference to the misconduct of the jury. The only witness who testified was the juror L. H. Webb, who testified that when the jury first went out there were seven of the jurors who were in favor of answering all the questions, "No," and five who wanted to answer all of them, "Yes"; that in their discussion in the jury room the juror Hancock stated that the witnesses B. Y. Hancock and B. J. Hancock, his father and uncle, were not in a position to know about the matters they had testified to because they were too young; and that the juror Cox said he had been a neighbor to Mrs. Tyus and knew that she would tell the truth because she was getting old and there was nothing in the lawsuit for her. The juror testified that he remembered the Hancocks each gave their age on the witness stand. One testified he was born in 1860 and the other in 1862. The juror testified he remembered that Mrs. Tyus had testified that she never heard of Felix...