Ford v. Ballard
| Decision Date | 22 November 1892 |
| Citation | 21 S.W. 146 |
| Court | Texas Court of Appeals |
| Parties | FORD v. BALLARD et al. |
Trespass to try title and for partition by W. C. Ballard and others against H. C. Ford and others. There was a judgment for plaintiff, and defendant Ford brings error. Affirmed.
B. D. Tarlton, for plaintiff in error. A. C. Foster and R. C. Walker, for defendants in error.
This is an action of trespass to try title and for partition, instituted in the district court of Haskell county by W. C. Ballard, A. C. Foster, Alice Tankersly, and her husband, Doc Tankersly, against H. C. Ford, T. W. Mayes, J. E. Norton, and W. H. Campbell. There was a trial without a jury, which resulted in a judgment in favor of Ballard and Foster for an undivided interest of 483 2/3 acres of the land sued for, and in favor of Alice Tankersly and Doc Tankersly for an undivided interest of 400 acres, and in favor of the defendants severally for the other portions of the land, except Campbell and Ford, who were adjudged to take nothing, and to pay the costs of the suit. This judgment was agreed to by all the defendants except Ford, who prosecutes this writ of error. The court below filed no conclusions of law and fact, but there is a statement of facts in the record, which shows that there is no controversy about the facts upon which the questions of law arise.
The first assignment of error complains of the action of the court in overruling the application of plaintiff in error for a continuance. The application was made and sworn to by the attorney, and sought to continue the cause to procure the testimony of his client, plaintiff in error. Our conclusion is that the application failed to show proper diligence, and that the testimony sought to be obtained was not material, and that therefore the same was properly overruled.
The second assignment complains of the admission in evidence of the deed from Mrs. N. L. Abbey to plaintiffs Ballard and Foster, which conveyed to them the entire tract of land in controversy, to wit, the John Connor survey of 1,744 acres, dated April 30, 1889; the ground of objection being that this deed bore date subsequent to the date of the ouster as alleged in the petition, and because it purported to be in lieu of a former deed, without the production of the deed in confirmation of which it purported to be made. The question here raised is decided adversely to plaintiff in error in Jenkins v. Adams, 71 Tex. 1, 8 S. W. Rep. 603. The 3d, 4th, 5th, 6th, and 7th assignments complain of the exclusion from the evidence (1) of a deed from Mrs. Alice Tankersly to W. E. Rogers, dated May 24,...
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