Duren v. Strong

• Decision Date: 28 May 1880
• Docket Number: Case No. 4104.
• Citation: 53 Tex. 379
• Parties: ALEX. DUREN ET AL. v. ADALINE STRONG.
• Court: Texas Supreme Court

53 Tex. 379

ALEX. DUREN ET AL.

v.ADALINE STRONG.

Case No. 4104.

Supreme Court of Texas.

May 28, 1880.

APPEAL from Navarro. Tried below before the Hon. D. M. Prendergast.

Suit in trespass to try title, brought by Adaline Strong, widow of Charles Strong, who died in the year 1870, devising to his wife all of his Texas lands. She alleged seizin and ouster by appellants, and also five years' peaceable possession, etc. Appellants plead not guilty and the three and five years' statutes of limitation. The facts were follows:

In the summer of 1854, Charles Strong, a citizen of the state of Georgia, came to Navarro county, Texas, and while there bought from Ethan Melton three hundred and eighty acres of land (the tract in controversy), part of the Thomas Morrow league, and known as the Thomas Morrow, Jr., tract. It was not shown that Melton had title. Shortly after the transaction Strong left for Georgia, but gave instructions to his agent, G. A. Rakestraw, to receive the deed from Melton and have it recorded. The deed was acknowledged by Melton and delivered to Rakestraw the next month, and by him deposited with R. N. White, clerk of the county court of Navarro county, for record. The deed was lost or destroyed, and was never recorded. Rakestraw continued agent of Strong until 1867, when Brooks went into possession as tenant of Strong. Brooks lived on the tract in controversy from March, 1870, until November, 1876, as tenant as the heirs of Strong, though claiming to hold during the last few months of his stay for defendants, paying some taxes.

Defendants' evidence was:

1. Grant from the state to Thomas Morrow, Sr., of one league of land in Navarro county, dated May 17, 1851.

2. Bond for title from Thomas Morrow, Jr., to J. R. Melton, calling for 680 acres, dated September 10, 1852.

3. Bond for title from J. R. Melton to D. R. Mitchell, calling for 669 acres, dated May 13, 1853.

4. Conveyances from the Mitchell heirs to defendants, the first of which was dated August, 1876. No deed was shown from Thomas Morrow, Sr., to Thomas Morrow, Jr., and the identity of the land in controversy with that described in the title bond from Thomas Morrow was not shown.

D. R. Mitchell died in December, 1853. His estate was administered by his son, W. H. Mitchell, and his son-in-law, Wells, both of whom died before this claim was made by the heirs. Neither D. R. Mitchell nor his heirs ever claimed the tract in controversy. It never appeared on any of the inventories of the estate of D. R. Mitchell, although the bond was recorded.

In spring, 1867, the attorneys of the Mitchell heirs gave notice to Brooks that they claimed the tract he was living on for their clients, and demanded possession.

Brooks refused to give up the land, claiming to hold as tenant of Strong, but finally in June, 1876, on the payment of $425, made a deed to his improvements to the Mitchell heirs, and attorned to them, no notice being given to Strong of the fact. There was no evidence that Mrs. Adaline Strong was aware of the fact that Brooks pretended to hold against her. It was proved that the vendee of the Mitchell heirs knew that Brooks was tenant of Mrs. Strong.

E. N. Read for appellants.--A tenant in possession under a lease from one claiming the land can attorn to an adverse claimant. Andrews v. Richardson, 21 Tex., 295,and authorities there cited; Hudson v. Wheeler, 34 Tex., 356. In the case of Gillespie v. Jones, 26 Tex., 347, this court, in the course of its decision,...