Halbert v. Martin

• Decision Date: 23 January 1895
• Citation: 30 S.W. 388
• Parties: HALBERT et al. v. MARTIN et al.
• Court: Texas Court of Appeals

30 S.W. 388

HALBERT et al. v. MARTIN et al.

Court of Civil Appeals of Texas.

January 23, 1895.

Appeal from district court, Ellis county; Anson Rainey, Judge.

Action by Mollie P. Halbert and others against Martin and Paine. From a judgment for defendants, plaintiffs appeal. Reformed and affirmed.

Thomas B. Greenwood, for appellants. M. B. Templeton, for appellees.

FINLEY, J.

This was an action of trespass to try title, brought September 22, 1890, by appellants, in the district court of Ellis county, against appellees and several other defendants, to recover 962½ acres of the Thomas I. Smith survey of land. On September 5, 1891, a severance was granted appellees. On September 16, 1891, appellee Paine filed his answer, containing (1) a disclaimer as to all the land sued for except 84.71 acres; (2) plea of not guilty; (3) special plea of title in himself to the 84.71 acres, and of estoppel of plaintiffs to recover same; (4) pleas of the statute of limitations of three, five, and ten years, and of improvements in good faith; (5) prayer for judgment for the 84.71 acres, or that he be adjudged to have a lien upon the same for the purchase price, and that he recover the value of his improvements. On September 16, 1891, appellee Martin filed his answer, containing (1) a disclaimer as to all the land sued for except 169¼ acres; (2) plea adopting the answer of appellee Paine as applicable to him, except as to the consideration paid for the said 169¼ acres, and except as to the improvements erected by him. Appellants filed a supplemental petition containing general and special exceptions to appellees' answers and setting up the disabilities of coverture and minority in avoidance of their pleas of limitations. On March 7, 1893, appellee Paine disclaimed title to any of the land sued for. On said March 7, 1893, the case was submitted upon the facts and the law to the presiding judge, who rendered judgment as follows: (1) In favor of appellants against appellee Paine for the land sued for; (2) in favor of appellee Paine for costs; (3) in favor of appellee Martin for the 169¼ acres claimed in his answer; (4) in favor of appellants against appellee Martin for the land sued for, except the said 169¼ acres. Appellants excepted to the judgment in favor of appellee Paine for costs and in favor of appellee Martin for the 169¼ acres, and gave notice of appeal.

The trial judge filed conclusions of fact and law, and his conclusions of fact, with slight changes, are here stated and adopted, as follows: In 1860, John E. Cravens died, possessed of the lands in controversy, holding the same from and under the sovereignty of the soil through a regular chain of title, and plaintiffs and defendants hold under him as a common source of title. At Cravens' death he left a wife, who died in 1862, and two children, Mollie P., the plaintiff herein, and Earl E., who died on April 18, 1880. Mollie P. married ____ Fortson, July 1, 1873, who died January 22, 1883. Mollie P. lived a widow then till December 14, 1884, when she married Halbert, her present husband. In 1862, Alford was appointed administrator of the estate of John E. Cravens by the probate court of Anderson county, and was recognized by the court and acted as such until his final discharge, in 1879. On April 17, 1876, he, as administrator, obtained an order from the district court of Anderson county, authorizing him to sell the land in controversy, among other lands, at public or private sale. In December, 1877, Alford sold the land in suit to the defendant Martin for a valuable consideration, part cash, and the balance in one and two years, all of which was paid. Alford made deed at the time, reciting among other things, that the order authorizing him to sell was made by the district court April 20, 1876. On May 20, 1878, the county court of Anderson county confirmed said sale by order duly entered of record. The county judge at that time was one Jowers, who had been one of Alford's bondsmen as temporary administrator. In May, 1878, Alford made his fifteenth annual report and final settlement, and was therefore discharged. At the time of his final report, Greenwood & Gooch, attorneys, represented plaintiff under full power of attorney to act in the premises, duly signed by plaintiff and her husband, Fortson, all duly acknowledged by plaintiff. In the final settlement there was an agreement made in which plaintiff and husband, by her attorneys, ratified the sale of the land in controversy, as well as other sales, in consideration of Alford relinquishing his fees to the extent of something over $1,000. The estate was distributed, and plaintiff received the part allotted to her in such distribution. In January, 1880, defendant Martin took possession of the land, and fenced about 40 acres at that time. In 1882 he fenced the balance, put it in cultivation, and placed...