Hamilton v. Green

• Decision Date: 04 April 1914
• Docket Number: (No. 7056.)
• Citation: 166 S.W. 97
• Parties: HAMILTON v. GREEN.
• Court: Texas Court of Appeals

166 S.W. 97

HAMILTON v. GREEN.

(No. 7056.)

Court of Civil Appeals of Texas. Dallas.

April 4, 1914.

Rehearing Denied April 25, 1914.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by W. J. Green against J. P. Hamilton. Judgment for the plaintiff, and defendant appeals. Affirmed.

Callicutt & Call and Jack & Jack, all of Corsicana, for appellant. Woods & Kerr, of Corsicana, for appellee.

RASBURY, J.

Appellee sued appellant in the court below, alleging that appellant was interfering with appellee and his tenants in the possession, use, and enjoyment of certain lands in Navarro county, of which he was the owner in fee simple. Injunction restraining appellant from his alleged unlawful acts pending a trial was sought, with prayer that it be made perpetual upon a hearing on the merits. Temporary writ of injunction was issued as prayed. No motion was made to dissolve same, and the case remained on the docket in the condition stated for probably two years, when appellant filed answer seeking affirmative relief, wherein it was alleged that the lands described in appellee's petition were a portion of the lands which descended to the heirs of Jesse L. Hamilton according to the law of descent and distribution. The answer, which was also indorsed as directed for suits in trespass to try title, then alleged as basis for the relief, sought the following facts: When Jesse L. Hamilton died, those entitled to his estate believed one of the tracts of land owned by him contained 199½ acres. This tract, by agreement of all concerned, was set aside to appellant and Lola Beauchamp, son and daughter, respectively, of Jesse L. Hamilton; Lola Beauchamp to have 72 acres thereof, and appellant the remaining 127½ acres. Lola Beauchamp's 72 acres were surveyed and set off to her; appellant taking the balance, supposing it to contain 127½ acres. As a matter of fact, the tract contained approximately 30 acres less than supposed, due to the error or mistake of a third person to whom the parties referred the division of the land and the preparation of the deeds of partition; the result being that Lola Beauchamp received more land out of said tract than she was entitled to, based upon the proportion or ratio indicated by the figures stated. Appellant, after discovering the mistake, the date of which discovery is not shown, demanded of his sister, Lola Beauchamp, a resurvey and repartition of the land and a correction of the deed. She agreed to do so, but, in fact, did not. She subsequently died, and those entitled to do so sold the land to appellee. Appellee had notice of the facts alleged, and, after his purchase, agreed to repartition the land and correct the deed. The prayer of appellant was, in substance, that evidence be heard, the land ordered resurveyed and repartitioned, and the deed from the appellant to Lola Beauchamp and the one from Lola Beauchamp's heirs to appellee be corrected so as to conform to the agreement of repartition between appellant and his sister.

Appellee, in his reply to appellant's answer seeking a resurvey and repartition of the land and a correction of the deed, set out as defensive matter the following facts: The heirs of Jesse L. Hamilton did, in fact, partition the land in controversy in the year 1896, and made deed to Lola Beauchamp, née Hamilton, therefor, appellant joining in same, said deed being recorded in Navarro county January 11, 1897. Mrs. Beauchamp went into visible, actual, and complete possession of the lands upon execution of the deed, fenced it from the other portion of the tract, continuing such possession until her death in 1900. After her death her husband and her children continued such possession...