Guilford v. Love
| Decision Date | 01 January 1878 |
| Citation | 49 Tex. 715 |
| Parties | ADAM GUILFORD ET AL. v. JAMES H. LOVE ET AL. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Robertson. Tried below before the Hon. John B. Rector.
The facts are very fully stated in the opinion.
William H. Hammon, for appellants.
I. The orders (not decrees) of the Probate Court of Milam county, in evidence in this case, do not “vest in James Dunn one-half interest in the Trudo league of land.”
1st. As to the petition and its sufficiency. (1 Paschal's Dig., arts. 1313, 1357, 1367; Finch v. Edmonson, 9 Tex., 512-515;Littlefield v. Tinsley, 26 Tex., 357;Mitchell v. Runkle, 25 Tex. Supp., 136;Runnels v. Kownslar, 27 Tex., 532.)
2d. As to the person by service.
3d. As to subject-matter. (Shriver's Lessee v. Lynn, 2 How., 58;United States v. Arredondo, 6 Pet., 709; and most of the authorities cited under preceding heads.)
4th. As to parties to partition. (Loller v. Frost, 38 Tex., 212;Newland v. Holland, 45 Tex., 588;Lewis v. Ames, 44 Tex., 320, 349;Stephenson v. McFaddin, 42 Tex., 323, 329;Oliver v. Robertson, 41 Tex., 422.)
5th. As to special and limited jurisdiction. (1 Paschal's Dig., arts. 1313, 1357, 1367; Finch v. Edmonson, 9 Tex., 513, 514;Jones v. Taylor, 7 Tex., 243, 244;Mitchell v. Runkle, 25 Tex. Supp., 132, and most of the authorities cited above; Foster v. Glazener, 27 Ala., 396, 397;Thatcher v. Powell, 6 Wheat., 119, 127;Shivers v. Wilson, 5 H. & J., 132, 133;Wheeler v. Curtis, 11 Wend., 654;Williamson v. Berry, 8 How., 537; Boswell v. Dickerson, 4 McL., 262; Kempe's Lessee v. Kennedy, 5 Cranch, 185; 2 Phillips' Ev., Car. H. & A., notes 306, p. 196.)
6th. As to pleading and proving consideration for land. (Tumlinson v. York, 20 Tex., 697.)
II. The power of the Probate Court over the subject-matter was exhausted by selling the land, confirming the sale, and ordering deed to be made; and these orders were void. (Withers v. Patterson, 27 Tex., 500;23 Ga., 569.)
III. The orders of the Probate Court do not in terms, nor by any reasonable intendment, vest title in Dunn; nor could the court by decree have vested title.
IV. By the terms of these orders, the administrator was to make title within one month after they were granted. By their own provisions, they had become inoperative and void over twenty years ago; and during all this time there is not an affirmative act asserting any right under these administrations, but an entire abandonment of everything. There is nothing on which to base a presumption in favor of plaintiffs.
V. The transcript from the records of the Probate Court of Milam county were inadmissible in evidence, and should have been excluded on objections made by appellants. (Hamilton v. Ward, 4 Tex., 361;Frederick v. Pacquette, 19 Wis., 541;Young v. Rosenaum, 39 Cal., 653, 654.)
D. H. Prendergast and W. E. Collard, for appellees.
I. The transcripts from probate records of Milam county for 1849 and 1850 were properly admitted as evidence.
II. The power of attorney, or deed, and the bond for title, made by John Trudo and Susan Trudo, his wife, to Niles F. Smith, June 30, 1836, and the transfers thereon, by Niles F. Smith to James Dunn, dated November 22, 1838, were admissible as ancient instruments, with the evidence offered to support them.
III. The effect of the orders of the Probate Court of Milam county of 1849 and 1850 was to vest title to the thirteen labors of the Trudo league in James Dunn, which, with deed from James Dunn to D. H. and Mary Love, and proof of heirship, proved title in plaintiff.
IV. The chain of paper title, introduced in evidence by appellees, made them tenants in common with the heirs of Trudo, and authorized them to recover in this suit, independent of their title through the decrees of the Probate Court.
V. The prior possession of plaintiffs by their tenants, Herring and Follis, was sufficient title to enable them to recover against the defendants as naked trespassers.
This suit was brought in trespass to try title on the twenty-sixth day of March, 1873, in the District Court of Robertson county, by James M. Love, administrator of the estate of D. H. Love, deceased; Joseph Love, a minor, by his next friend, Mary Love, a feme-sole; Tennessee Collard and her husband, F. R. Collard; Patrick H. Love, Benjamin F. Love, and Madora Love, a minor, by her next friend, Josephus Cavitt, against Adam Gilford, Embro Jones, Garrison Dickenson, T. J. Powell ( alias Tom Powell), Joseph Williams ( alias Joe Williams), Antony Williams ( alias Antony Williamson), Edny Love, a feme-sole, and Giles Cotton, as trespassers, for the west half of the John Trudo league and labor in Robertson county. Defendants' unlawful entry is alleged to be on the first of July, 1872, at which time, and at the institution of the suit, plaintiffs allege that they were the owners of the said west half of said league in fee-simple.
Petition describes the west half of the league by metes and bounds, and prays for judgment for title and possession of the same.
Defendants demurred generally, and answered by plea of not guilty.
There was verdict for plaintiffs for the land described in their petition, July 26, 1875, and judgment accordingly on same day.
Defendants filed a motion for a new trial, which was overruled by the court; to which defendants excepted, and gave notice of appeal to the Supreme Court.
The appeal was perfected, and the transcript filed in the Supreme Court January 20, 1876.
The defendants set up no title in themselves, either in the pleadings or in the evidence, and relied upon the deficiency of plaintiffs' title, and upon an outstanding title in the widow and heirs of one Darr, who, it is contended, purchased the whole league of land, at a sale of it by Smith, administrator of Trudo's estate, which will be more particularly noticed hereafter. The plaintiffs claim the land, as shown by the evidence, through as many as three chains of title, as well as by prior possession, which are contended to be valid, if not as legal, certainly as equitable titles, sufficient to maintain the action against mere trespassers.
One was a title through the title bond executed to Niles F. Smith for the one-half of said league, by the grantee, John Trudo, with transfers down to plaintiffs, which seem to have made out an equitable title to an undivided half of the land sued for, if there had been no legal partition of the land.
Another was based on three orders of the County Court of Milam county, aided by explanatory evidence, pertaining to the administration of the estate of John Trudo, purporting to have effected a partition of the league of land pursuant to and in satisfaction of said bond executed to Niles F. Smith for one-half of it.
Another was by deed from the widow and heirs of Darr, procured by plaintiffs to extinguish the outstanding title in them, if it should be found that said Darr had derived title to the half league of land sued for in this action, by the purchase referred to at the sale by the administrator, Smith.
The court, upon the trial of the case, for some reason not apparent, selected the title dependent upon the said three orders of the County Court of Milam county, isolated and separated from the auxiliary evidence, and from the bond on which they were founded, which was also in evidence, and submitted that to the jury by a single charge. That course makes the correctness of the judgment depend upon the legal sufficiency of said orders to convey either a legal or equitable title, either in severalty or in common, to the party under whom the plaintiffs claim title to the land sued for.
The said orders and charge of the court are as follows:
“PETITION FOR PARTITION.
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¦THE STATE OF TEXAS, ¦)¦
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¦County of Milam. ¦)¦
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PROBATE COURT, July Term, 1848. James Dunn, estate of John Trudo, deceased.
To the Hon. A. C. Dodd, Probate Judge of Milam county: Your memorialist would respectfully show to your honorable court that he holds a bond of John Trudo for one-half of the headright league and labor, and that, having complied with all the conditions on his part, he is entitled to the part of the land prayed for; and prays your honorable court to appoint commissioners, to wit, to set aside to him his part of said land, and cause a title to be made to him for his part of said land; and your petitioner will ever pray.
JAMES DUNN.
CAMERON, August 2, A. D. 1849.
COUNTY COURT.--Present: Isaac Standifer, Ch. J.; F. T. Duffau, clerk; John McLennan, sheriff.
Ordered: That Joseph Webb, Thomas R. Webb, and Wm. W. Patrick be, and they are hereby, appointed commissioners to divide the league of land in Robertson county which was originally granted to John Trudo, as his headright league of land, between the heirs of Trudo and James Dunn, it having been shown to the satisfaction of the court that said Dunn is entitled to one-half of said league of land;...
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