Dutton & Rutherford v. Wright & Vaughn

• Decision Date: 25 February 1905
• Parties: DUTTON & RUTHERFORD v. WRIGHT & VAUGHN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 1025

DUTTON & RUTHERFORD v. WRIGHT & VAUGHN.^*

Court of Civil Appeals of Texas.

February 25, 1905.

Appeal from District Court, Franklin County; P. A. Turner, Judge.

Trespass to try title by Wright & Vaughn against Dutton & Rutherford. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Chas. S. Todd, for appellants. Glass, Estes & King and R. T. Wilkinson, for appellees.

RAINEY, C. J.

This is an action of trespass to try title to 267 acres of land, brought by appellees against the appellants. On trial before the court without a jury, judgment was rendered for appellees, and appellants appeal.

The evidence shows that M. M. Bowman in November, 1868, filed an application in the county court of Titus county, Tex., where the administration of the estate of George B. Clifton, deceased, was pending, against H. L. Cherry, administrator of said estate, for a specific performance of a bond for title executed by George B. Clifton on the 23d of April, 1862, obligating himself to convey the land in controversy and other lands to M. M. Bowman in trust for the heirs of M. M. and Mary J. Bowman, who were Sarah Frances (afterwards Sarah Frances Lynch), Mary J. (afterwards Mary J. Lynch), Theophilus, George Taylor, William, and Ancie D. Bowman. Ancie D. died in 1865 without issue. On December 28, 1868, the said county court of Titus county, at a regular term held for probate business, upon a full hearing of the cause, decreed that the said administrator make deed and title to the land described. On June 10, 1873, H. L. Cherry, administrator of the estate of said Clifton, made deed in accordance with said judgment to M. M. Bowman for the use and benefit of the heirs of M. M. and Mary J. Bowman. Said deed recites the filing of the application, the making of the bond by said Clifton during his lifetime, the judgment of the court (describing the land), and that it (the deed) was made in pursuance of said judgment. The land embraced by the judgment and administrator's deed was 640 acres, patented to George B. Clifton, assignee Buffalo Bayou, Brazos & Colorado Railroad Company, and two other tracts, containing 587 and 320 acres each, which constituted a part of the George B. Clifton estate. On January 25, 1872, William Bowman deeded to J. M. Taliaferro an undivided one-fifth interest in 640 acres of the Clifton survey, less 20 acres sold to Hunt. On April 18, 1874, M. M. Bowman made a deed partitioning the land between the said parties; all of them, including Taliaferro, agreeing to said partition, except Theophilus, whose whereabouts were unknown. His son, after reaching majority, sold Theophilus' interest, and said heirs and said Taliaferro have recognized and acquiesced in said partition ever since. In the said partition the 267 acres which were taken off of the west side of the 640-acre survey fell to Mrs. Lynch, and the appellees hold her title. One hundred and eight acres in the southeast corner of said 640 acres was set aside to Taliaferro (the William Bowman interest), who took possession of same. The said 108 acres is not embraced in the 267 acres in controversy. On March 25, 1893, Taliaferro conveyed to W. A. Pogue a one-fifth interest in the 640-acre survey. Appellants hold under this title. The partition deed was recorded long before appellants purchased any interest in the land. Appellants were charged with notice of the partition, and of Taliaferro's interest, which was the 108 acres.

Appellants complain of the action of the court in admitting in evidence the deed from H. L. Cherry, administrator, to M. M. Bowman, and in considering and basing its judgment thereon, because the bond for title on which the judgment was based was not introduced, and that no facts were alleged or proved to authorize the making of said deed, and that the court had no jurisdiction to render such a judgment, as it was not in accord with, but varied from, the terms of the bond for title. That the court had...