Emery v. Barfield

• Decision Date: 08 January 1916
• Docket Number: (No. 7588.)
• Parties: EMERY et al. v. BARFIELD et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

183 S.W. 386

EMERY et al. v. BARFIELD et al.^*

(No. 7588.)

Court of Civil Appeals of Texas. Ft. Worth.

January 8, 1916.

On Motion for Rehearing, February 5, 1916.

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Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

Suit by F. H. Barfield and others against S. E. Emery and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Ben L. Cox and Eugene De Bogory, both of Abilene, for appellants. J. M. Wagstaff, of Abilene, for appellees.

BUCK, J.

This is the third time this case has been before us on submission. In the first appeal, 138 S. W. 419, the trial court having rendered judgment for plaintiffs, the defendants appealed, and the judgment was reversed for error in the charge, Justice Speer speaking for the court. On the second presentation the cause was remanded for failure of the trial court to file his findings of fact and conclusions of law in due time, Chief Justice Conner, while writing the opinion for the majority, dissenting, inasmuch, as stated in said dissenting opinion, as there appeared in the record a statement of facts duly approved by the court. See 156 S. W. 311. Later, appellees' motion to certify was overruled by the majority, Chief Justice Conner dissenting as before. Appellees, plaintiffs in the court below, having applied for a writ of error to the Supreme Court and defendants in error having answered, the Supreme Court reversed the judgment of this court (177 S. W. 952), holding that, inasmuch as it did not appear that the omission of the trial judge to duly file his conclusions prevented a proper presentation of the question involved in the appeal, or that it could have operated to the prejudice of appellants in that court, the judgment of this court was erroneous, and the cause was remanded to this court for further consideration.

On November 20, 1915, the appellants' motion for a resubmission was granted, and the cause was set down for hearing on December 11th. Suit was filed by appellees in the district court of Taylor county at the July term, 1909, in the form of trespass to try title, involving title to some 650 to 700 acres of land out of a tract of 13½ labors patented October 28, 1859, to Samuel Andrews, or Anders, who was the grandfather on his mother's side of defendant S. E. Emery and of some of the plaintiffs and the great-grandfather of the Barfields. The defendants S. E. Emery, Susan Sullivan, and W. L. Grogan, after a plea of not guilty, interposed pleas of three and five years' limitation. The defendant Grogan specially pleaded, as to the 100 acres conveyed to him by Emery, the plea of bona fide purchaser for value. The defendants S. E. Emery and Susan Sullivan further pleaded that, in addition to the common source of title from which both plaintiffs and defendants claimed originally, they held under and by virtue of a junior and superior outstanding title acquired by defendant Susan Sullivan, by a deed from R. H. Parker of date March 29, 1892; and as to the 200 acres included in the homestead designation, they pleaded the fee-simple title from their ancestor Samuel Andrews. Judgment was rendered by the court, a jury having been waived, for plaintiffs as against all defendants to an undivided one-half interest to all of the land described in the deed to R. H. Parker by the sheriff, except that part of the land theretofore conveyed to J. H. Williams; second, in favor of S. E. Emery against the plaintiffs of a tract 475 varas by 1353 varas; third, and in favor of defendants Emery and Grogan for one-half undivided interest in the balance of the land not otherwise disposed of by the judgment; fourth, and against Susan Sullivan, plaintiffs recovering their costs as against Emery—from which judgment defendants appeal.

S. E. Emery and Mrs. Mary Crutcher, formerly Mrs. Mary Murray, were children of Mrs. Susan Sullivan by a former marriage. There were five children born to Mr. and Mrs. Sullivan as follows: Mrs. John De Shazo, Mrs. Frankie Greenwood, Mrs. Annie Houser, James W. Sullivan, and Mrs. Sarah E. Barfield. At the time of the suit James W. Sullivan was dead, and also Mrs. Barfield. The three daughters first mentioned, joined by their husbands, as well as the heirs of the other two children deceased, were plaintiffs.

To get a clear conception of the facts involved we will here note the documentary evidence introduced. Plaintiff offered: (1) The patent from the state, October 28, 1859, to Samuel Andrews of said 14½ labors of land located in Jones county on the west bank of the Elm fork of the Clear fork of the Brazos, containing some 2,106 acres; (2) deed dated December 17, 1868, from Samuel Andrews, or Anders, to his daughter Susan Sullivan to 1,151¾ acres, being the south one-half of the tract covered by the patent; (3) deed of December 14, 1880, from J. M. and Susan Sullivan to their daughter Sarah E. Barfield, conveying 500 acres fronting on Elm fork, it being off of the southwest corner of the patented tract; (4) deed of August 12, 1886, of 555.75 acres by J. M. and Susan Sullivan to Mrs. Mary Murray; (5) deed of July 3, 1882, from J. W. and Sarah E. Barfield to J. M. Sullivan, reconveying the 500 acres theretofore conveyed by the Sullivans to Mrs. Barfield; (6) deed of October 24, 1882, from Mrs. Murray to James M. Sullivan, reconveying 651¾ acres described in the deed to her from the Sullivans; (7) deed from the Sullivans to J. H. Williams, July 6, 1892, 550 acres off the west side of the tract originally conveyed by Samuel Andrews to his daughter Susan Sullivan.

Defendant offered: (1) The patent from the state to Samuel Andrews. (2) A quitclaim deed of J. M. Sullivan to Susan Sullivan of date December 10, 1891, and filed for record February 23, 1892, deed records of Jones county; consideration recited $10.00 paid and the further consideration that said Susan Sullivan is to assume and pay off a certain indebtedness of $2,500, together with all interest due the Jarvis-Conklin Mortgage Trust Company." This deed covers 1,150 acres, being apparently the tract conveyed by Samuel Andrews to Mrs. Sullivan. (3) A general warranty deed from Susan Sullivan to S. E. Emery of date August 10, 1907, conveying "all that certain tract or parcel of land described and known as the west one-half of the Samuel Andrews survey No. 191, except 550 acres out of the south part of same, which is now held and claimed by Mr. Wright, the land herein conveyed consists of 700 acres, more or less, and is all the land now owned by me under my control of the said Samuel Andrews survey." The consideration recited is, "$1.00 and the further consideration set out herein to me in hand paid by S. E. Emery, and with the further consideration that he, S. E. Emery, will care for and provide for me during the remainder of my life, and in consideration of the fact that he, the said S. E. Emery, has devoted himself for the last several years to my happiness and well-being when there was no one to care for me, and in consideration of the love and affection I have for my son, the said S. E. Emery." (4) Deed of November 16, 1908, from S. E. Emery to W. L. Grogan, conveying 100 acres in the northeast corner of west one-half of the Samuel Andrews survey.

Plaintiff further introduced the original papers in the justice court of Taylor county, styled R. H. Parker v. J. M. Sullivan, wherein plaintiff secured a judgment for the sum of $22.50 and costs, and the levy under alias execution issued December 9, 1891, by the sheriff of Jones county on "951 acres of the Samuel Andrews survey No. 191, being all of the west one-half of said survey except 200 acres, homestead of J. M. and Susan Sullivan"; (2) designation of homestead, by J. M. Sullivan, of date June 30, 1887, of the 200 acres exempted from the levy in the Parker v. Sullivan suit; (3) certified copy of a sheriff's deed, conveying 951 acres to R. H. Parker "for $25.00," by which "all the right, title and interest which said J. M. Sullivan had on October 26, 1891, or at any time afterwards" to said tract was conveyed; (4) quitclaim deed from R. H. Parker to Mrs. Susan Sullivan of March 29, 1892, and filed for record March 31, 1892.

The case hinges upon the issue as to whether, at the date of the death of J. M. Sullivan, the land in controversy was community property, or the separate property of Susan Sullivan, the surviving wife, under whom appellants claim. As will be noted, 1,151¾ acres conveyed by Samuel Andrews to Mrs. Sullivan was originally her separate property. Later, as evidenced by deeds to Mrs. Murray, a daughter by her first marriage, and to Mrs. Barfield, a daughter by her second marriage, Mrs. Sullivan, joined by her husband, disposed of her entire holdings under the deed from her father. Thereafter, by reason of the reconveyance by these two daughters of the two several tracts mentioned, the title to the same was vested in J. M. Sullivan, the husband of Mrs. Sullivan, and therefore became prima facie community property. Article 4622, Vernon's Sayles' Texas Civil Statutes. There is ample evidence to sustain the conclusion, evidently reached by the trial court, that J. M. Sullivan paid out of the community funds a valuable consideration for these two tracts conveyed. J. W. Barfield, son-in-law of Mr. and Mrs. Sullivan and surviving husband of Sarah E. Barfield, deceased, testified, in part as follows:

"I remember my wife received some property from Mr. and Mrs. J. M. Sullivan. There was 500 acres of land. That is the deed from Sullivan and wife to Mrs. Barfield which has been introduced in evidence here. I don't remember about how long she held the property; only a few...