Gamble v. Banneyer, 1860-7608.

• Citation: 151 S.W.2d 586
• Decision Date: 07 May 1941
• Docket Number: No. 1860-7608.,1860-7608.
• Parties: GAMBLE et al. v. BANNEYER.
• Court: Supreme Court of Texas

151 S.W.2d 586

GAMBLE et al. v. BANNEYER.

No. 1860-7608.

Commission of Appeals of Texas, Section B.

May 7, 1941.

Motion for Rehearing Overruled June 4, 1941.

Error from Court of Civil Appeals of First Supreme Judicial District.

Trespass to try title suit by Nellie C. Gamble and others against Dorothy Banneyer, executrix. To review a judgment of the Court of Civil Appeals, 127 S.W.2d 955, affirming a judgment for defendant, plaintiffs bring error.

Judgment of the Court of Civil Appeals affirmed.

A. G. McNeese, Jr., and J. E. Price, both of Houston, and A. R. Rucks and Robert M. Lyles, both of Angleton, for plaintiffs in error.

Jones, Jones & McCollough, Ira P. Jones, Jr., and Byron G. McCollough, all of Houston, for defendant in error.

Carlos B. Masterson, of Angleton, amicus curiæ.

TAYLOR, Commissioner.

This is a trespass to try title case in which plaintiffs Mrs. Nellie Gamble and her two children filed suit against Mrs. Dorothy Banneyer, independent executrix of the will and estate of William Banneyer, her deceased husband, to recover 190 acres of land in Brazoria county.

Plaintiffs, anticipating defenses, alleged that Mrs. Banneyer claimed title through a judgment rendered in favor of the state against Mrs. Gamble, the owner, and Alex Sharp, the lien holder, foreclosing the state's lien for taxes, and sought an adjudication that the judgment is void and incapable of supporting a sale of the land to defendant's deceased husband.

At the conclusion of the evidence both sides moved for a verdict. The court overruled plaintiffs' motion and upon an instructed verdict rendered judgment in favor of defendant. The Court of Civil Appeals affirmed the judgment in an opinion, which see for a statement of the case. 127 S.W.2d 955.

The following facts are added to those stated by the Court of Civil Appeals: The date of the tax judgment is July 19, 1930. It recites, in addition to the recitations appearing in the opinion of the Court of Civil Appeals, that the years for which the taxes against the 190 acres involved were delinquent are 1913 to 1928, inclusive (15 years), and that the total of the taxes, interest, penalties and costs for those years is $1,816.52. The year 1913 is the year of the purchase of the land by Mrs. Gamble's husband from Alex Sharp.

The present suit was filed about seven years after the date of the tax judgment. G. A. Gamble, a real estate dealer and brother-in-law of plaintiff, Mrs. Gamble, was the only witness offered by the plaintiffs. He testified he knew of his brother's purchasing the land from Sharp, and that while he did not remember the exact terms of the purchase he recalled his brother paid nearly half cash for the land and executed vendor's lien notes for the balance; that after his brother's death in 1918 he had undertaken "in an advisory way" to handle some matters for Mrs. Gamble; that he knew when the tax suit was filed and when Mrs. Gamble was served with citation; that she told him it was the 190 acres of land in Brazoria county that was referred to in the citation; that he also knew "the land had never been paid for to Alex A. Sharp"; that he discussed the tax suit with Mrs. Gamble; that on his own volition he went to Angleton and tried to get the taxes (about $1,800) reduced but failed; that she did not have the money to pay the taxes and when he failed to get them reduced he did not advise her what to do about it; that both he and she knew the taxes had not been paid; that he tried to get the lien holder to pay the taxes and charge it against the lien; that he did not know Sharp was a party to the tax suit, and at no time discussed the matter of the notes with him and had no correspondence with him about them; that he did not think they had been paid; that Mrs. Gamble did not have the money to pay the taxes or do anything about it; that no one did anything about it except what he did in the matter of trying to get the taxes reduced.

Writ of error was...