Gilbert v. Odum
| Decision Date | 07 February 1888 |
| Citation | 7 S.W. 510 |
| Parties | GILBERT v. ODUM <I>et al.</I> |
| Court | Texas Supreme Court |
O'Brien & John, for plaintiff in error. R. H. Leonard, for defendants in error.
The plaintiff in error, W. F. Gilbert, brought this suit in the district court of Jefferson county against Morgan Odum and L. P. Ogden, alleging that he was the owner of an undivided one-half interest in certain lots in the town of Sabine Pass, and that defendants owned the other half, and prayed for partition of the same. Defendants denied plaintiff's claim, and averred that they were the exclusive owners of the lots, and prayed that they might be quieted in their title and possession. Both parties claimed from T. R. Jackson and wife as a common source; who, on 5th day of February, 1875, made a deed to the land to Elias T. Smith, with a covenant of general warranty. Plaintiff claimed title to one-half of the land, through deeds derived from sales under judgments and executions against Louis King; and averred that Elias T. Smith purchased the land with the money of King and wife, and held it in trust for them; that King caused the conveyance to be made to Smith to prevent the property from being subjected to his, King's, debts. Defendants claimed through deeds made by the heirs of Elias T. Smith, who had died about the year 1877. Administration had been opened in the county court of Jefferson county on the estate of Elias, by his brother, Niles H. Smith, who made an attempt to sell the land, but failed to carry it into execution; and all of the heirs of Elias, including N. H. in his individual capacity, united in conveying the land, as before stated.
During the progress of the trial, plaintiff offered in evidence an exhibit under oath, filed in the county court by Niles H. Smith, administrator of the estate of Elias T. Smith in the matter of his estate, but which was not acted upon by the court; reciting that since filing the inventory of Elias' estate he had become satisfied from information derived from the other heirs of the estate, that one-half the property set out and claimed therein is the property of Louis King, as claimed by him; which was excluded by the court, and the ruling is now insisted upon as erroneous. It is not apparent upon what ground counsel suppose the court erred in rejecting the evidence offered; the assignment being general, and there being no suggestions why the ruling is deemed erroneous. It is presumed, however, that the exhibit was offered as an admission of Niles H. Smith, administrator and heir of the estate of Elias T. Smith....
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