Flanagan v. Boggess

• Decision Date: 01 January 1876
• Citation: 46 Tex. 330
• Parties: J. W. FLANAGAN, ADM'R, v. B. BOGGESS ET AL
• Court: Texas Supreme Court

46 Tex. 330

J. W. FLANAGAN, ADM'R,

v.B. BOGGESS ET AL

Supreme Court of Texas.

1876.

APPEAL from Rusk. Tried below before the Hon. M. D. Ector.

December 5, 1873, J. W. Flanagan, as the administrator of George Pierce, brought an action of trespass to try title against Braziel Boggess, for 640 acres of land, the headright of David Brown.

Giles Boggess, jr., made himself a party defendant as landlord of the original defendant, setting up title by purchase of the land at tax sale, and limitation of five years under the tax deed, duly recorded, &c.

In support of his title, plaintiff read in evidence a copy of a patent to Brown, and the papers in a suit by the heirs of David Brown and Mrs. Brown against one W. L. Park, in which suit Elizabeth Pierce, then administratrix of the estate of George Pierce, was made a party defendant. This suit was brought to cancel a deed from Brown to Pierce, because he was non compos, and also to recover Mrs. Brown's community in the land. The suit was brought to the Spring Term, 1856, and at the Spring Term, 1869, judgment was rendered for defendants. These papers, and a deed and bond from David Brown to George Pierce, constituted the plaintiff's title.

Defendant offered papers from the Probate Court in the administration of the estate by Elizabeth Pierce, which were objected to and excluded. The papers showed proceedings in the estate tending to show a sale, to W. C. Pierce, of the land. Administration had been granted to Daniel Pierce, and then to Elizabeth Pierce, the widow.

Defendants also offered a tax deed for “620 acres of the headright of David Brown, situate about twelve miles north of Henderson, in the neighborhood of Bellview.” The sale was made under an assessment of 620 acres, assessed for 1854, as the property of George Pierce, and sold, in 1855, to Giles Boggess.

Boggess, over objection, testified that the notices of the tax sale were correct and regular, though he could not recollect their contents. It was also shown that Boggess took possession of the land in 1856, and had held possession, by tenants, ever since, except a year or two during the war, and paid taxes during the corresponding time. The plaintiff also testified that he had leased the land in 1861 and 1862, but never saw the party to whom he leased since, or collected the rent, and did not know that his lessee went upon the land.

It was also shown by plaintiff, that Giles Boggess' wife was an heir of George Pierce, and that shortly after the tax sale, David Pierce, then administrator of the estate of George Pierce, offered to redeem the land from Boggess, who then said, “it made no odds about the taxes; to let it alone until the lawsuit then pending (the suit by the heirs of Brown) was decided; that all of them were interested, and after the suit was decided they could fix it up.”

The tax deed was objected to, because the prerequisites to sale had not been shown. It was also in evidence that David Brown, at the date of his deed to George Pierce, did not have capacity to make a contract.

The plaintiff asked the court to charge the jury, that if suit was brought by Brown's heirs against Parks, the tenant of of Boggess, and that said tenant and Elizabeth Pierce, former administratrix of George Pierce, (plaintiff's intestate,) defended said suit, claiming said property as the property of her intestate, the possession of said tenant (Parks) was not adverse to plaintiff during the pendency of said suit.

The jury found for the defendants. Motion for new trial was overruled, and Flanagan appealed.

The errors assigned are discussed in the opinion, except the third error, which was as follows: “The court erred in its charge to the jury.”

R. M. Winn & N. G. Bagley, for appellant, cited Blackwell on Tax Titles, 64, 342, 450; Kelly v. Medlin, 26 Tex., 53;Yenda v. Wheeler, 9 Tex., 408;Pitts v. Booth, 15 Tex., 453;Neill v. Cody, 26 Tex., 286;Robson v. Osborn, 13 Tex., 305;Wofford v. McKinna, 23 Tex., 44.

James H. Jones, for appellee, cited Elliott v. Mitchell, 28 Tex., 107;Howard v. Colquhoun, 28 Tex., 134;Garner v. Cutler, 28 Tex., 175;Wofford v. McKinna, 23 Tex., 43;Yenda v. Wheeler, 9 Tex., 408.

GOULD, ASSOCIATE JUSTICE.

Under the charge of the court, it is evident that the jury found for the defendant on the plea of five years' limitation, and not upon the ground that the deed from the assessor and collector conveyed a valid title It is not, therefore, necessary to inquire whether the court erred in allowing Giles Boggess to testify as to the regularity of the advertisements of the tax sale, for if this was an error, it is apparent that it could have had no influence on the result of the trial. An erroneous ruling in admitting evidence authorizes a reversal, where it may have operated to the prejudice of the appellant; but not otherwise. (Willis v. Chambers, 8 Tex., 151.)

The assignment, that the court erred in its charge, is too general to require attention. We cannot say that the court erred in refusing the charge asked by appellant. The charge assumes that there was evidence that Parks was the tenant of Boggess, and it may have been rejected by the court, on the ground that there was no evidence of such tenancy. The record shows that a suit was brought against Parks, in 1856, as in possession of the land, and that in his defense he claimed to be in possession as the lessee of William C. Pierce, who held under a purchase from the administrator of the estate of George Pierce, deceased. It further appears that the administratrix of George Pierce's estate appeared and defended this suit in connection with Parks. It nowhere appears that appellee claimed that Parks was his tenant. It is true that he testifies that he held possession of the land in 1856, when that suit was brought against Parks; but there is nothing whatever to show that his possession was not by himself, or some other person than Parks. So far as the statement of facts shows, the defendant's claim of five years' limitation was wholly independent of, and disconnected with, Parks's possession, if, indeed, (for there is no other evidence on the subject,) the fact that Parks was sued, is sufficient to show that he was in possession at all.

The sixth assignment claims that the tax deed under which defendant claimed, did not describe...