Glasscock v. Hughes

• Decision Date: 10 December 1881
• Docket Number: Case No. 1065.
• Citation: 55 Tex. 461
• Parties: G. W. GLASSCOCK ET AL. v. T. P. HUGHES.
• Court: Texas Supreme Court

55 Tex. 461

G. W. GLASSCOCK ET AL.

v.T. P. HUGHES.

Case No. 1065.

Supreme Court of Texas.

Dec. 10, 1881.

APPEAL from Williamson. Tried below before the Hon. E. B. Turner.

The Willis Donahoe, Jr., league and labor was located in Williamson county in two tracts, one on Brushy creek and one on Donahoe creek; both tracts were surveyed in 1853, and subsequently patented in the name of G. W. Glasscock, assignee of Donahoe.

The A. L. Eaves league was located in Williamson, Milam, Comanche and Callahan counties, and also patented to G. W. Glasscock, assignee of Eaves.

In 1839 Glasscock, joined with one T. B. Huling, conveyed to Henry Millard one-half of the Donahoe league and labor certificate, and one-fourth of the A. L. Eaves league certificate. The certificates both were issued to G. W. Glasscock, assignee.

Millard died in 1844, leaving his two sons his heirs, Fred S. and Henry B. Millard.

These heirs in 1857 conveyed all the interest they took by descent in the Donahoe and Eaves certificates and lands, being one-half of the Donahoe and one-fourth of the Eaves, to Hughes and Vontress.

Ed. H. Vontress died in 1864, and his estate is in process of administration in Williamson county, and in a partition suit between T. P. Hughes and the heirs of Vontress, it had been decreed that Hughes take three-fourths and the heirs of Vontress one-fourth of the Hughes and Vontress lands, and in a partial partition under the judgment, the Donahoe lands had been allotted to Hughes-- the tract on Brushy being valued at $4 and that on Donahoe creek at $2 per acre, and so charged to Hughes in the partition.

G. W. Glasscock died in 1868, and his estate was administered in Travis county. The heirs of Glasscock set up claim to the Brushy creek (Donahoe) survey and the whole of the A. L. Eaves lands, and in partition of the Glasscock estate, six hundred acres of the Brushy creek survey and all of the Eaves tracts were divided among the Glasscock heirs.

Glasscock in his life-time had deeded all of the Brushy survey but six hundred acres in severalty.

February 13, 1872, Hughes instituted this suit in the district court of Williamson county against the heirs and representatives of Vontress and the heirs of Glasscock, for a partition of the lands.

The whole of the Donahoe and part of the Eaves lands were situated in Williamson county, where also resided all the heirs of Vontress and two of the heirs of Glasscock. The other heirs of Glasscock resided two in Travis and two in Bexar counties.

The petition set out the rights of plaintiff and of the heirs of Vontress in the Donahoe and Eaves lands; alleging in addition that all the other interest therein was claimed by the Glasscock heirs, who were made parties.

March 4, 1873, plaintiff amended, setting out the field notes of the several surveys, giving a history of the title which he claimed; asserted title in Glasscock, Sr., to half of the Donahoe league and labor, the other half as conveyed to Millard; that Glasscock had sold off large parts of the Brushy creek Donahoe survey; asking that such parts so sold be allotted to the heirs of Glasscock, but that the equivalent in value be allotted plaintiff in the other lands sought to be partitioned. As to the Eaves tract, the amendment asserted ownership in plaintiff and the Vontress heirs of one-fourth interest, and that the legal title of the remainder was in Glasscock, who had pretended that he had given one-fourth for locating same, but of which proof was asked.

The defendants' demurrer raised the following questions:

1. That as to the Donahoe survey there was no privity of interest between the heirs of Vontress and the heirs of George W. Glasscock, Sr., because the appellee set up a title under the order of the district court in the then pending suit between Hughes and the Vontress heirs concerning the Donahoe survey, vesting all the interest of the Vontress heirs in the appellee, and that to this extent there was an improper joinder of parties defendant.

2. That as to the Eaves survey the appellee's pleadings were faulty, because he failed to show who were all the owners of the Eaves survey. He failed to set out with sufficient certainty the extent of the interest of himself and of the heirs of Vontress in that survey, and he also failed to set out the character and extent of the interest of the appellants in it.

The appellants then answered to the merits, and, after pleading the general issue, set up in this first answer the following defenses:

1. They denied the appellee's title to any part of the Eaves survey; asserted the exclusive ownership of it in themselves, and that it had been partitioned among the heirs of George W. Glasscock, Sr., by the probate court of Travis county.

2. As to the Donahoe certificate, they alleged that their ancestor, George W. Glasscock, Sr., owned one-half of it; that he located his half on Brushy creek; that he held this tract of land, claiming the exclusive ownership of it, with the knowledge of all the parties, and sold during his life-time, publicly and openly, by metes and bounds, all of this half league except about six hundred acres, without objection or protest from anybody; received and used all the purchase money from such sales, and that since his death it had fallen to the share of his daughter, Mrs. Logan.

3. As to that part of the Donahoe land on Donahoe creek, they said that it still belonged either to the Millard heirs, or to Talbot, or to themselves, but that at all events the appellee does not own it.

4. They further set up that long prior to the death of H. Millard (which occurred in 1843 or 1844), and during the life-time also of Huling and Glasscock, Sr., the three constituting the firm of T. B. Huling & Co., had a settlement and partition of their respective interests in the entire Donahoe certificate; that this league and labor certificate was divided into equal shares long before it was located and patented; that under this ancient partition their ancestor located his half of his certificate on Brushy creek, while the Donahoe creek part fell to the share of H. Millard, and that under this partition Glasscock, Sr., exercised exclusive control of the Donahoe land on Brushy creek, with full knowledge and acquiescence on the part of Millard and of his heirs and assigns, while the latter exercised like acts of ownership over the land on Donahoe creek.

5. By an amended answer, appellants set up as a further defense, that on the 20th of January, 1839, the firm of T. B. Huling & Co. sold one-half of the W. Donahoe, Jr., league and labor certificate, and that afterwards George W. Glasscock, Sr., individually purchased this half which had been sold by the partnership, and that it thus became his private property; that in 1842 and 1843, and some time prior to the death of Millard, there was a partition of the interest acquired and held under the Donahoe certificate, under which that part of the Donahoe certificate located on Brushy creek fell to Glasscock, Sr., and the part located on Donahoe creek fell to H. Millard.

6. That under this ancient parol partition, the estate and heirs of Millard took charge of the Donahoe creek land, and that Millard's administrator sold it to J. W. Talbot. That the heirs of Millard, dissatisfied with this sale, brought suit against Talbot on the 23d of September, 1857, more than ten years before the death of George W. Glasscock, Sr., and without joining him as a party defendant, in which they asserted that they were the sole owners of the land on Donahoe creek, and in which they accurately described it by metes and bounds, they having previous to that date located it there. That the appellee having bought the interest of the Millards, intervened in that suit in his own right and on behalf of the Vontress heirs, and claimed the exclusive ownership of this land; and that finally, by a compromise in that suit, it was partitioned under a consent decree, under which Talbot retained about eight hundred acres, while the appellee recovered the balance.

7. They further set up that the ancient parol agreement and partition was acted upon and concurred in by all the parties to it in good faith up to and after the 16th day of April, 1870, when, after the death of Glasscock, Sr., the consent decree between Talbot and the Millards was entered; that in March, 1870, the heirs of G. W. Glasscock, Sr., still acting under this ancient partition, divided the Donahoe land on Brushy among themselves; and that all the parties, including the heirs of Glasscock, Sr., and the appellee himself, had acted in good faith under this partition.

8. It was further alleged that more than thirty years had elapsed since this alleged partition was made; that all the Brushy creek part of the Donahoe land had been sold to strangers and innocent persons except about six hundred acres; that more than one-third of the other half on Donahoe creek had also been sold to and was held by strangers, and that this long lapse of time, the antiquity of the transactions, the long acquiescence of all parties, the equities which had in the meantime sprung up, should be a bar against the appellee's claims, and that in equity and good conscience the ancient settlement should not be disturbed after the death of all the parties to it.

A motion for a change of venue was made by the appellants. It was based upon the fact that the pleadings put in issue the title to the Donahoe land on Donahoe creek, and necessitated an inquiry as to the proper construction to be placed upon the judgment rendered concerning that tract of land in the suit between Talbot and the Millards. It was proved that in that case the presiding judge was of counsel, and consented by an agreed decree to a partition of it with the appellee, and that he had, as attorney for Talbot, before the institution of that suit, filed a protest in the land office against the issuance of a patent for the land on Donahoe creek.

No deed of partition...