Eastham v. Sims

• Decision Date: 26 September 1895
• Citation: 32 S.W. 359
• Parties: EASTHAM et al. v. SIMS et al.
• Court: Texas Court of Appeals

32 S.W. 359

EASTHAM et al. v. SIMS et al.

Court of Civil Appeals of Texas.

September 26, 1895.

Appeal from district court, Walker county; J. M. Smither, Judge.

Action of trespass to try title by J. A. Sims and others against L. C. Eastham and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

McKinney & Hill and S. M. Randolph, for appellants. T. H. Ball, for appellees.

WILLIAMS, J.

This was an action of trespass to try title, instituted November 3, 1893, by appellees, to recover of appellants a tract of land and the value of the use and occupation of same. Appellants pleaded not guilty, and suggested improvements made in good faith. There was a trial by jury, and a verdict was rendered, as follows: "We, the jury, find for plaintiffs one half of the land in controversy and one-half of the improvements, setting off the value of the improvements against the use and occupation of the land." Judgment was accordingly rendered in favor of plaintiffs, against defendants, for an undivided half of the land and improvements. The evidence adduced at the trial showed that plaintiffs were the heirs of Mary Ann Tucker, who died November 8, 1884. She had been the wife of Albert Tucker, Sr., who survived her, since 1845, and the property in controversy belonged to their community estate, acquired during marriage, and, at the time of her death, was their homestead, and was the homestead of Albert Tucker at the date of the deed to appellants, stated below. When Mary Ann Tucker died, there were debts chargeable against the community estate as follows: $85.65 due to appellants, $100 to Dr. Watson, and $100 to Dr. Thomason. The debt due Dr. Watson was subsequently paid with community property. The date of this payment is not given, but, considering the lapse of time between the death of Mrs. Tucker and the making the deed to appellants, as stated below, we think it fair to assume that it had been paid prior to the date of that deed. The debt due to appellants was reduced by payment made by Tucker after his wife's death, but during same year, to $43.78. It is not claimed that the payment was made out of separate funds of Tucker, or that he had any separate property; and, as it was made in a very short time after the death of the wife, we think the proper inference, from all of the circumstances, is that it was made with community funds. For the balance due appellants, at the end of 1884, Tucker gave them his note. He continued trading with them during the years following, until March, 1890, contracting further indebtedness and receiving credits. The balance of 1884 was carried into his subsequent accounts, and, for balances left after applying credits, he gave other notes. How much was paid in these dealings, and from what sources were derived the funds with which payments were made, the evidence does not show. So that, from the evidence, the jury could not, and this court cannot, find that, at the date of the deed from Tucker to appellants, there was left unpaid any of the indebtedness which was due to appellants at the death of Mrs. Tucker. At the date of that deed, the debt due to Dr. Thomason, amounting, with interest, to about $125, remained unpaid. Appellants held against Tucker his note, amounting, with interest, to $243.37, and an account, amounting, with interest, to $32.36 In March, 1890, appellants and Tucker agreed upon a conveyance of the land in controversy, for a consideration of $400, of which $275 was to be applied to the payment of Tucker's debts to appellants, and the balance, of $125, was to be paid in cash, Tucker stating to appellants that he needed that sum to pay Dr. Thomason's claim. Appellants consulted an attorney as to Tucker's power to convey, and were advised that he had power to make a conveyance of the property for the payment of community debts. One of the appellants thereupon wrote a deed for the property, stating as the grantors, not only Tucker and his wife (with whom he had intermarried after the death of his former wife), but also the children of the former marriage, Tucker agreeing to endeavor to induce the latter to sign the deed. They declined, and appellants accepted the deed as written, but signed only by Tucker and wife. The debt to appellants was thus paid, and they executed to Tucker their note, payable on demand, for the balance of $125. They did not, however, pay all of it in money, but bought a note of Tucker for $45, held by other parties, which was not a community debt, and with this discharged part of the balance of purchase money due, paying in cash only $80. This was not applied by Tucker to the discharge of any debt against the community estate, and the Thomason debt was subsequently paid with property jointly owned by Tucker and the plaintiffs. The evidence conflicted as to the value of the place at the date of the conveyance; some of it putting it as high as $700, and some of it tending to show that, in money, it was worth less than appellants paid for it. Within three months after the deed was made, appellants were notified by one of the plaintiffs that the children of Mary Ann Tucker claimed the land, and would assert their title, and that any improvements put upon the place would be made at their risk. All improvements were put on the land after such notice was given. Since the deed was made, appellants have asserted exclusive right to the land, and have excluded appellees from joint possession. The evidence conflicts as to the value of the use and occupation, but there was enough to warrant the jury in finding that the use of half of the land, exclusive of improvements, was equal to half of the value of improvements made by appellants.

After the death of Mary Ann Tucker, the legal title of the land was in Albert Tucker, Sr., but the equitable title to half of it vested in Mrs. Tucker's children, and was...