Gaddis v. Junker

• Decision Date: 25 April 1930
• Docket Number: No. 1943.,1943.
• Parties: GADDIS et al. v. JUNKER et al.
• Court: Texas Court of Appeals

Page 911

29 S.W.2d 911

GADDIS et al. v. JUNKER et al.

No. 1943.

Court of Civil Appeals of Texas. Beaumont.

April 25, 1930.

Rehearing Denied May 28, 1930.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Action by Lela Gaddis and others against Guy W. Junker and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

E. E. Easterling and W. D. Gordon, both of Beaumont, for appellants.

C. A. Lord, W. G. Reeves, Orgain, Carroll & Bell, and F. J. & C. T. Duff, all of Beaumont, and Jno. E. Green, Jr., of Houston, for appellees.

WALKER, J.

This was an action in trespass to try title by appellants against appellees, suing for the title and possession of an undivided interest of 615 acres in 741 acres out of a tract of 1,660½ acres awarded the four children of William H. Smith in a partition of the William H. Smith league of land in Jefferson county, Tex., in probate court on July 26, 1847. There were two groups of plaintiffs, one suing as the heirs of Mary Green and the other suing as claimants under, or heirs of, P. O. Brousan. The history of these claims is as follows: The four children of William H. Smith, to whom the land was awarded in the partition suit, were John B., William H., Jr., Mrs. Partain, and Mary, who subsequently married William H. Green in Jefferson county, Tex., on the 23d of December, 1849. John B. and Mrs. Partain, prior to the Civil War, sold their interests under this partition by valid conveyances. Mary, joined by her husband, by deed dated the 19th day of April, 1850, attempted to convey her interest to P. O. Brousan, but as to her and her heirs this deed was void because defectively acknowledged by her; William H. died during the Civil War intestate, owning his interest in this land, and without issue. After the death of her husband, William H. Smith, the mother of these four children subsequently married and died about 1853, leaving surviving her by this second marriage two children, identified in this record as Mrs. Raymond and Mrs. Duffy. As John B. and Mrs. Partain had sold their interest under the partition prior to the death of their brother William H., their subsequent interest in the land was limited to the one-fourth interest each inherited under this deceased brother. Mary Green also inherited a one-fourth interest in his estate, as did the two half-sisters, Mrs. Raymond and Mrs. Duffy. By actual survey this tract of land contained 1,808 acres. By suit, judgment entered in 1899, John B., Mrs. Partain, and their two half-sisters, Mrs. Raymond and Mrs. Duffy, and those holding under them, asked for partition of the 1,808 acres against those holding under the conveyances made by John B. and Mrs. Partain prior to the death of their brother William H. The interests thus owned by the claimants under the Smith and Partain deeds were awarded to them by the 1899 judgment in two separate tracts each containing 410 acres off the south end of the 1,808 acres, that is, Mr. Arceneaux, claiming under one of these conveyances, was awarded 410 acres by specific metes and bounds off the extreme south end of the tract, and Mr. Broussard was awarded a second 410 acres by specific metes and bounds immediately north of the Arceneaux 410 acres. By this judgment appellee Guy Junker was awarded a third tract of 247 acres off the south end of the 1,808 acres, lying immediately north of the Broussard 410 acres. The balance of the 1,808 acres, being 741 acres, was awarded to the plaintiffs in the judgment of 1899. Neither Mary Green nor her husband nor her children, nor any one holding by conveyances under her or her husband or children, were parties to the judgment of 1899, nor were they named in any way in that suit. From the judgment entered therein it appears that the suit was brought on the theory that the plaintiffs named therein were all the heirs of William H. Smith, deceased. Subsequent to the judgment of 1899 the plaintiffs therein, and those holding under them, conveyed 51 acres, by specific metes and bounds, out of the 741 acres to appellee James F. Weed. This tract of land was in the form of a square, bounded on the east by the east boundary line of the league and on the south by the east end of the north boundary line of the Junker 247-acre tract; also, subsequent to the entry of the 1899 judgment appellee Guy W. Junker acquired the interest of all the plaintiffs in that judgment to the balance of the 741 acres, that is, all the 741 acres, except the 51 acres sold to Weed. As presented on this appeal, the group of plaintiffs suing as the heirs of Mary and William H. Green claim their undivided interest of 615 acres in the 741 acres exclusive of the Weed 51 acres.

The following is the history of the claim of the group of appellants suing as heirs of P. O. Brousan, or holding under such heirs. As just stated, Mary and her husband, in 1850, attempted to convey her undivided interest in the 1,808 acres to P. O. Brousan. On the 21st day of July, 1925, this group of plaintiffs filed suit in the district court of Hardin county against the unknown heirs of Mary and William H. Green to recover an undivided one-fourth interest in the 1,808 acres. After citation had duly issued, and on subsequent proceedings in all things regular, judgment was duly entered in that cause on the 12th day of September, 1925, in favor of the plaintiffs and against the unknown heirs, as named, for the one-fourth undivided interest sued for. After the entry of that judgment, but within the time allowed by law, the appellants herein, who sue as the heirs of Mary and W. H. Green, moved to set aside the Hardin county judgment of September, 1925. That motion was in all things overruled by the trial court, and exceptions thereto properly reserved preparatory to an appeal to this court. Pending the perfection of the appeal, the parties thereto settled their conflicting interests upon a satisfactory basis, and all parties in that proceeding joined as plaintiffs in filing and prosecuting this suit, making defendants herein appellees James F. Weed and Guy W. Junker and all parties holding under Junker. Since 1923 the land has become of great value because of the discovery of oil near its boundaries.

It is sufficient to say of the answers of the defendants that they plead not guilty and the several statutes of limitation.

On the trial it was ruled, as a matter of law, that the group of appellants claiming under the Hardin county judgment of September, 1925, had no interest in the land by virtue of that judgment. By their testimony appellants undertook to show that the group of plaintiffs suing as the heirs of Mary Green were in fact her heirs. That issue was controverted by appellees. Appellees also undertook to support their pleas of limitation by appropriate testimony. Upon a trial to a jury it was found that Weed had perfected limitation of five years to his 51 acres. It was also found that all the appellees had perfected their claim of ten years' limitation. The issue of heirship was sent to the jury by the following question, which was answered in the negative:

"Special Issue No. 1.

"Do you find from a preponderance of the evidence in this case that the plaintiffs suing as the heirs of Mary Green, deceased, are the true heirs of the Mary Green who was the daughter of William H. Smith, to whose heirs the land in controversy was originally granted?"

Against this question appellants have the following assignments: First. They insist that this question, as framed, submitted an issue of law to the jury. This contention is denied. As we construe the question it carried directly to the jury, in an affirmative way, the claim of the group of appellants suing as such that they were the heirs of Mary Green. The identity of the heirs of a given party, raised as was the issue in this case, is always a question of fact. The term "heirs" has a technical meaning not readily understood by the average juror; however, since that trouble can be easily obviated by a proper definition, it presents no difficulty in submitting the issue as was done here. Had the word been properly defined, the jury could have had no trouble in measuring the facts by the technical definition of the term. As appellants requested no definition and reserved no exceptions to the trial court's failure to define the term, it must be presumed that the jury correctly understood the issue. Second. Appellants assign error against the refusal to submit the following question: "Was William Green, who married Mary Smith, the same man who married Zelma Granger in 1860 and Elizabeth Wakefield in 1863?" This assignment is overruled. The issue requested was no more an affirmative submission of appellant's theory of the case than the issue submitted.

By their third proposition against question No. 1 appellants insist that the jury's answer to this question is against all the evidence in the record. They also insist that the court erred in refusing to instruct the jury peremptorily that the appellants claiming heirship under Mary Green were in fact her heirs. However, appellants have no proposition that the answer to this question was so against the great weight and preponderance of the testimony as to be clearly wrong. Appellants have briefed the question simply as one of law, presenting the single issue that there was no evidence against their claim of heirship. On this issue the following facts appear without controversy: Mary Smith married William H. Green in Jefferson county, Tex., on the 23d day of December, 1849, who at the date of his marriage could not sign his name. After the death of Mary's father her mother moved with her family, including Mary and her husband, to Matagorda county. The evidence is indefinite as to how long Mary and her husband lived in Matagorda county, but it appears with reasonable certainty that they left there in 1853 and moved to Louisiana, where two daughters were born to them, Cornelia and Selama. Mary...