Gorham v. Settegast

• Decision Date: 21 November 1906
• Citation: 98 S.W. 665
• Parties: GORHAM et al. v. SETTEGAST.
• Court: Texas Court of Appeals

Page 665

98 S.W. 665

GORHAM et al. v. SETTEGAST.

Court of Civil Appeals of Texas.

November 21, 1906.

On Rehearing, December 19, 1906.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Clarence Johnson against J. J. Settegast and Ida M. Gorham and another intervenor. From a judgment in favor of defendant, the intervenors appeal. Reversed and remanded.

A. C. Van Velzer and Lewis Fogel, for appellants. Stewart, Stewart & Lockett, for appellee.

NEILL, J.

This suit was brought by Clarence Johnson against J. J. Settegast in the ordinary form of an action of trespass to try title to 617½ acres of the Eli Noland survey situated in Harris county, Tex. On August 22, 1904, Mollie E. Noland and Ida M. Gorham intervened in the case, claiming that they were the true and sole owners of the land sued for by Johnson. The claim to the land as pleaded by them in their petition of intervention is as follows: "Mrs. Ida M. Gorham, O. H., W. L., and Miss Mollie Noland are the sole and only heirs at law and next of kin of Eli Noland, deceased, being the only grandchildren of Beckwith Noland, who was the brother of said Eli Noland, the parents and grandparents all being dead, and all other nearer kindred, lineal and collateral, of said Eli Noland also being dead; that Mrs. Lizzie Noland is the widow of S. P. Noland, who was the father of Mrs. Ida M. Gorham; that Mrs. Ella Noland is the widow of Frank Noland, deceased, who was the father of said O. H., W. L., and Mollie E. Noland; that said Mrs. Ella Noland, O. H., and W. L. Noland have transferred and conveyed their interest in said land and premises to Mollie E. Noland, who is the owner and entitled the possession of an equal, undivided one-half share thereof. Said Mrs. Lizzie Noland has conveyed to her daughter, Mrs. Ida M. Gorham, all her interest in said land and premises, and said Mrs. Gorham is therefore the owner and is entitled to the possession of the other equal undivided one-half of said land and premises." Subsequently the petition of Johnson, the original plaintiff, was dismissed. The defendant Settegast answered intervenors' petition by pleas of the three, five, and ten years' statutes of limitation and a cross-bill, in the nature of an action of trespass to try title against intervenors for possession of the premises and quieting his title thereto against intervenors' claim. On March the 16th the intervenor Mollie E. Noland suggested her marriage to W. W. Johnson since filing her petition in intervention, and, upon such suggestion, he was joined with his wife as a party plaintiff in the action, and he appeared and adopted the allegations in intervenors' original petition. It is thus seen that the intervenors are the real plaintiffs in the case against the original defendant, Settegast. The case was tried before a jury, whom the court instructed that the evidence was not legally sufficient to prove the heirship of the parties suing as intervenors, and that the deeds in evidence showed that all title of Eli Noland had passed out of him and his heirs, and thereupon directed the jury to return a verdict for the defendant. From the judgment entered upon a verdict returned in obedience to such instructions, the intervenors have appealed.

There are 33 assignments of error insisted upon by appellant for reversal of the judgment. The principle questions raised by them are: (1) Did the court err in instructing the jury that the evidence was not legally sufficient to prove the heirship of the intervenors? (2) Did the court err in instructing the jury that the deeds in evidence showed that all title of Eli Noland to the land in controversy had passed out of him and his heirs? All other questions raised by the assignments are involved in and are simply subsidiary to those stated. It will, therefore, be unnecessary to take up and consider every assignment of error separately, but consideration of all will be given in determining the question stated.

Before reciting the substance of the evidence upon which appellants seek to establish title to the property in controversy as the heirs of Eli Noland, we will state what, under the law, it was necessary for them to prove in order to entitle them to recover. It will be observed that they are claiming by collateral descent. One claiming by such descent must show who was last entitled, and then prove his death without issue. Next prove all the different links in the chain of descent which will show that the one who was last entitled and the claimant descended from the same common ancestor, together with the extinction of all those lines of descent which could claim any preference to the claimant. He must prove the marriages, births, and deaths and the identity of the persons necessary to fix title in himself, and the extinction of others who have, if in existence, a better title. This is done by proving the marriages, births, and deaths necessary to complete his title, and showing the identity of the several parties. He must prove that all the intermediate heirs between himself and the ancestor from whom he claims are dead, without issue. 3 Wash. on Real Property (3d Ed.) § 38; Abbots' Trial Ev. § 24; 3 Elliott on Ev. §§ 2188, 2189; Anson v. Stein, 6 Iowa, 150; Skinner v. Fulton, 39 Ill. 484; Sprigg v. Moale, 28 Md. 497, 92 Am. Dec. 698; Shriver v. State, 65 Md. 278, 4 Atl. 679. The evidence tends to show that Eli Noland, to whom the land in controversy was patented, died December 17, 1841, leaving his wife, Elizabeth Noland, and his two sons, Branch T. Archer Noland and Beckwith Noland, surviving him. It also tends to show that his brother, B. A. Noland, died in Harris county about 12 years later; that he left surviving him his wife and three sons, all of whom are dead; and that his only surviving descendants are his grandchildren, Ida M. Gorham, Mollie E. Johnson, appellants, O. H. Noland and W. L. Noland, whose interest in the land in controversy is claimed by appellants through deeds from them. Eli Noland being seised of the property in question at the time of his death, the presumption is that it was of the community estate of himself and surviving wife. Therefore, when he died, his wife, Elizabeth, was the owner of one half and his two sons of the other half of the property. It is not claimed by appellants that they were related by blood to Elizabeth, the surviving wife of Eli Noland. Therefore, for appellants to have inherited the property, or any of it, it was incumbent upon them to prove that all three of these parties who took title upon the death of Eli Noland are dead, and that the death of Elizabeth Noland occurred prior to the death of both Branch T. Archer and Beckwith Noland; for, if they died first, Elizabeth, as their mother, inherited the interest that descended to them through their father in the property, and consequently, she being of no blood relation to appellants, they would have inherited nothing from her, but the property would have descended to her heirs. Elizabeth, the widow of Eli Noland, on December 2, 1842, married Edward O'Connor. It seems to be conceded that Branch T. Archer Noland died prior to 1848; for at the November term of that year of the county court of Harris county Elizabeth, as widow of Eli Noland, for her use and use of her child, as an allowance, was awarded by the county court 640 acres of the land of her deceased husband. Upon Branch T. Archer Noland's death (assuming from his minority he died without issue) his interest in the property descended to his mother, Elizabeth O'Connor, and to his brother, Beckwith Noland. Thus stood the title to the property in its descent from Eli Noland in 1848. So it will be seen, under the principles of law stated, that in order for appellants to show that it descended and vested in them it was essential for them to prove that Elizabeth O'Connor died without issue of her second marriage, and that her son Beckwith Noland survived her and died without issue. Unless evidence was adduced which, at least, tended to establish such facts, there was no error in the court's instructing the jury to return a verdict for the defendant upon the ground that plaintiffs had failed to show that the title to the property descended and vested in them by inheritance.

Now, as to the evidence offered by plaintiffs to prove such facts. On these issues Mrs. Gorham, one of appellants, and her mother, Mrs. Oates, testified substantially as follows: That Beckwith, son of Eli Noland, also died in New Orleans in 1878, shortly after the death of his mother, Elizabeth. Witness says she knows these facts because all her relatives discussed them; because Mrs. Pannell, who raised her father, told her so; because her uncles, aunts, cousins, and father also stated it; because it was family history, and all of it was discussed at home; because her mother, father, his brother, his sister-in-law, all the children, and the entire family talked it over, and she heard it from all of them; that these statements were made by them ever since witness was old enough to have a memory; that it was often discussed, and at all times, when discussed, the facts were stated in the same way, and their discussion was an every day occurrence; that her uncle Frank Noland received information from New Orleans of the death of the son and widow of Eli Noland; that her Uncle Frank knew, of his own personal knowledge, Eli Noland's last son died in New Orleans; that the family made inquiries in New Orleans in 1878 about the death of the son and widow of Eli Noland, and he went over there to find out about it.

Besides, Mrs. Oates testified that the members of the family here occasionally heard from the widow and son of Eli Noland prior to 1878, while they lived in New Orleans, that their home was in New Orleans, and that since 1878 neither one had been heard from, except in the fall of that year a telegram was received from the son, stating the death of his mother, and about two...