Darden v. Vanlandingham

• Decision Date: 24 June 1916
• Docket Number: (No. 1596.)
• Citation: 189 S.W. 297
• Parties: DARDEN et al. v. VANLANDINGHAM et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

189 S.W. 297

DARDEN et al. v. VANLANDINGHAM et al.^*

(No. 1596.)

Court of Civil Appeals of Texas. Texarkana.

June 24, 1916.

Rehearing Denied October 5, 1916.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Suit by Earnest Darden and others against M. L. Vanlandingham and others. From a judgment for defendants, plaintiffs appeal. Judgment reversed, and judgment rendered for plaintiffs, the case being remanded to be disposed of in accordance with the prayer for a partition.

W. H. Fears, of Waxahachie, for appellants. J. T. Spencer and G. C. Groce, both of Waxahachie, for appellees.

HODGES, J.

In February, 1915, the appellants filed this suit against appellee, seeking to recover an undivided nine-tenths interest in ten acres of land described as a part of the Z. Wilson survey, situated in Ellis county. They also sought to have the land sold and the proceeds partitioned among the several claimants. The appellee presented defenses claiming the exclusive title to the entire tract. The material issues of fact are practically undisputed.

It was shown upon the trial that the land was formerly owned by J. R. Darden and wife, both of whom are dead; that Darden and wife had ten children, and the appellees represent all of their heirs except one, H. C. Darden. J. R. Darden left two tracts of land. One of them is described as containing 165 acres, less 32 acres which had been sold. This tract was purchased by Darden in 1880, and the deed duly placed on record. The other tract, the one involved in this litigation, was purchased by him in 1892, but the deed was not recorded until a short time before the institution of this suit. This latter tract adjoins the other on the north. In 1906 the Darden heirs instituted a suit in the district court of Ellis county for the purpose of partitioning the lands left them by their parents. It seems that all then agreed that H. C. Darden, who was the oldest child, and the one most familiar with the property to be divided, should be given the power to arrange with an attorney for instituting the suit and to control the conduct and the proceedings to follow. The heirs intended to include in that suit all of the real estate left them by their deceased parents, but for some reason only the larger tract was described in the original pleadings; no mention being made of the other. Judgment was rendered in due course of time, directing the land to be sold at private sale for cash by a special commissioner appointed for that purpose. At the sale which followed the land was purchased by W. R. McDaniel at $35 per acre, and the price paid was based upon an estimate of 133 acres. The evidence shows that McDaniel purchased at the instance of and for H. C. Darden, to whom he immediately executed a conveyance. In 1907 H. C. Darden and wife conveyed to J. H. Goodloe. In December, 1911, Goodloe and wife conveyed to the appellee. The deed from McDaniel to Darden, and that from Darden to Goodloe, contained a description only of the larger tract of land; but the deed from Goodloe to the appellee included in its description the land involved in this suit. The evidence also shows that the judgment of the court, the various orders made, and the report of the commissioner followed the description in the original petition of the plaintiffs, and did not include the land in controversy.

At the conclusion of the evidence the appellants requested a peremptory instruction in their favor. This was refused, and the court propounded interrogatories to the jury, in response to which the following findings of fact were made: (1) That J. R. Darden owned 133 acres of land; (2) that the heirs intended to include all the land he owned at his death in the partition suit; (3) that they believed that the sale made in those proceedings disposed of it all; (4) that the purchaser under the partition sale believed he was getting all of the lands belonging to the estate of J. R. Darden; (5) that the Darden heirs through that partition proceeding received pay for 133 acres of land. Upon these findings the court entered a judgment in favor of the appellee, and denied any recovery to the appellants. This judgment is attacked upon the ground that it is unsupported by the evidence.

It may be conceded that all of the facts found above are true; yet it does not follow that the relief granted in the court below should have been given. By proof of heirship from J. R. Darden, an admitted common source, the appellants established a prima facie right of recovery to the extent prayed for. To defeat that prima facie right the appellee relied solely upon the grounds that the appellants have received pay for all the land they inherited from their ancestors, and that the failure to include in the partition suit the tract in controversy was the result of a mistake on the part of all those interested. If all the heirs had been free from any legal...