Hanrick v. Gurley

• Decision Date: 18 December 1899
• Parties: HANRICK et al. v. GURLEY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

54 S.W. 347

HANRICK et al. v. GURLEY et al.¹

Supreme Court of Texas.

December 18, 1899.

Error from court of civil appeals of Third supreme judicial district.

Action of trespass to try title, and for other relief, by Nicholas Hanrick and others against E. J. Gurley and others. A judgment adjudicating the rights of the parties was affirmed in part by the court of civil appeals (48 S. W. 994), and all parties except defendant Gurley bring error. Reformed and affirmed in part, and reversed and remanded in part.

Presley K. Ewing, H. F. Ring, Boynton & Boynton, and L. W. Goodrich, for plaintiffs in error. Rice & Bartlett, B. L. Aycock, and Eugene Williams, for defendants in error.

WILLIAMS, J.

Edward Hanrick, a citizen of Alabama, under whom all the parties to this action claim, died in the year 1865, intestate and without wife or children, leaving the following as his nearest kindred: (1) E. G. Hanrick, the son of a deceased brother; (2) Elizabeth O'Brien, a sister; (3) James Hanrick, and (4) John Hanrick,—brothers. All of these were aliens, subjects of the United Kingdom of Great Britain and Ireland, except E. G. Hanrick, who was a citizen of Alabama. John Hanrick died in 1870, without issue and unmarried. James Hanrick died in 1875, leaving the following children: Nicholas, Ellen, and Annie Hanrick, Catherine O'Neil, and Elizabeth Clare,—and the following grandchildren, issue of a deceased daughter: Robert, Mary, Bridget, and Elizabeth Whelan. At his death Edward Hanrick owned the following lands in Texas: Five leagues in Falls county, originally granted to Pedro Zarza; 11 leagues in Falls county, originally granted to Antonacio de la Serda; 1 league in Falls county, and 10 leagues in Williamson county, originally granted to Aguirre. He also had claims, the nature of which the record does not fully show, to other lands in Liberty, Milam, and Bell counties. This action was begun on the 17th day of December, 1878, by Elizabeth O'Brien and the persons above named as children and grandchildren of James Hanrick against E. G. Hanrick and Philip O'Brien and his wife, Eliza M. O'Brien, in trespass to try title, to recover an undivided two-thirds interest in the Serda and Zarza grants; the petition being in the ordinary form, except that it specially alleged plaintiffs' title by inheritance from Edward Hanrick, and their alienage, as before stated, in connection with which an act of the British parliament, not necessary to be stated, was set up, and admitted that E. G. Hanrick was entitled to an undivided one-third interest in the land sued for, and charged that Eliza M. O'Brien and Philip O'Brien wrongfully claimed an interest in the land to which they were not entitled. In 1879 there was a dismissal as to the defendants Philip and Eliza M. O'Brien, and later Elizabeth O'Brien, one of the plaintiffs, having conveyed her interest before the suit was brought, discontinued her action. By various subsequent amended petitions and interventions, Philip and Eliza M. O'Brien were brought back into the case as defendants, and E. J. Gurley, W. H. Powers, W. E. Kendall, Charles Babbidge and his wife, Carrie Babbidge, William Brady, and others, who need not be named, became defendants or interveners. Brady, Eliza M. O'Brien, and Ellen Hanrick died pending suit, and their respective legal representatives were made parties. By the amended pleadings the cause was made to assume the character of a suit, not only to recover the interest claimed by the plaintiffs, but for an adjudication of the rights of all parties, and for a partition. By the amended pleadings of plaintiffs, many parcels of the two grants in question were sought to be excluded from the controversy by the allegation that they were held by persons claiming them adversely to the estate of Edward Hanrick, deceased, and that E. G. Hanrick, claiming to be the sole heir and the administrator of the deceased, had compromised with such claimants by releasing to them the entire title of the estate to the parcels so held, and that plaintiffs acquiesced in and ratified such conveyances, with the prayer that such lands, specifically described, should be set aside to E. G. Hanrick, valued at zero, and that the remainder of the two grants, also specifically described in Exhibit F to the petition, be partitioned. All other parties claiming adversely to E. G. Hanrick adopted such allegations and prayer, and the controversy now is over the land described in Exhibit F.

The claims of the parties, as they were alleged in the pleadings and shown by the evidence, were as follows: The plaintiffs claimed the one-third inherited by James Hanrick from Edward Hanrick. Three of such plaintiffs (Nicholas, Annie, and Ellen Hanrick), however, alleged that they had executed deeds, dated, respectively, August 21, 1877, and April 3, 1878, purporting to convey to Eliza M. O'Brien, the wife of Philip O'Brien, all their interest in the lands of the estate of Edward Hanrick, but that such deeds were made without consideration, and in trust for the purpose of enabling suit for the recovery of such lands to be brought in the name of a native American citizen, under the misapprehension that such suit could not be maintained in the grantors' names, they being aliens, and that the grantees in such deeds had conveyed interests in the lands to some of defendants, and prayed for a cancellation of all such deeds. The evidence at the trial established these allegations. None of the parties now before this court contest this claim, except Powers and the Babbidges, and except that E. G. Hanrick urges certain defenses of limitation and res judicata, predicated upon the conveyances of the legal title of these parties to Eliza M. O'Brien. The interest which had been inherited by Elizabeth O'Brien was conveyed by her to Eliza M. O'Brien on May 11, 1878, and one-half of such interest was conveyed by Eliza M. and Philip O'Brien to William Brady on November 27, 1878. After the institution of this suit, Philip and Eliza M. O'Brien made the following deeds to William Brady: May 24, 1879, 1,000 acres; January 10, 1880, 2,000 acres; December 14, 1880, 1,000 acres; October 11, 1881, 1,000 acres. All of these deeds were properly recorded and the four last stipulated that the quantities of land conveyed might be selected by Brady out of any lands which should be set apart to Philip or Eliza M. O'Brien in partition of the estate of Edward Hanrick. The claim of Brady's estate is therefore for one half of the interest originally inherited by Elizabeth O'Brien, and 5,000 acres to be taken out of the other half of such interest; and, by his pleadings filed before his death, he elected to take the 5,000 acres out of such lands as might be set aside to Eliza M. O'Brien in the Serda grant, so far as it should suffice, and the remainder out of the Zarza. As to this claim, controversies exist between him, Powers, and Babbidge. Philip and Eliza M. O'Brien on the 15th of November, 1882, executed a deed to W. H. Powers conveying all their interest in the Serda grant; and Powers, by virtue of this conveyance, claims, not only such interest as Philip and Eliza M. O'Brien held under their deed from Elizabeth O'Brien, but also the interest which the deeds from Nicholas, Ellen, and Annie Hanrick purported to convey to her,—asserting that he purchased for value, without notice of the trust upon which the plaintiffs alleged the latter deeds were executed. On March 8, 1884, Philip and Eliza M. O'Brien executed to Charles Babbidge a mortgage on her interest in the Zarza grant, reciting such interest to be one-sixth thereof; and under this mortgage, and a sale made in pursuance of an attempted foreclosure thereof, Mrs. Carrie I. Babbidge asserts title to one-sixth interest, both by virtue of the conveyance from Elizabeth O'Brien to Eliza M. O'Brien, and also by virtue of the conveyances to the latter from Nicholas, Annie, and Ellen Hanrick,— her claim under the latter deeds being that the mortgage was taken without notice of the trust alleged. On the 9th day of August, 1884, Philip and Eliza M. O'Brien, by deed reciting and confirming the previous conveyances to Brady, conveyed to W. E. Kendall all their remaining interest in the lands of the estate of Edward Hanrick which had been inherited by Elizabeth O'Brien from Edward Hanrick or from John Hanrick. There were conveyances made by Philip and Eliza M. O'Brien to other parties, who are not now asserting rights under them, and we deem them unimportant in the decision of the questions now before the court. E. G. Hanrick claimed all of the lands in controversy as the sole lawful heir of Edward Hanrick, asserting that the others were incapable of inheriting because of their alienage. He also claimed that the interests of Nicholas, Ellen, and Annie Hanrick had been lost by limitation, and had also been adjudicated against them in previous suits, the judgments in which were set up by him. E. G. Hanrick also set up, and claimed the right to have allowed and charged upon the common estate, sums of money which he, while acting as administrator of Edward Hanrick, and asserting sole ownership in himself of such estate, had paid out for taxes, court costs, attorney's fees, and other expenses incurred in prosecuting and defending actions for the establishment of the title against adverse claimants. All of such claims were disallowed by the judgment of the court below, except those for taxes and court costs, which were allowed as a charge to be satisfied by sale of property unless paid by the parties. E. J. Gurley claimed one-third of all the lands under a contract made with Edward Hanrick, which was thereafter ratified and continued in force by E. G. Hanrick, as administrator and sole heir, under which Gurley was to receive one-third of all lands recovered from parties who claimed and held nearly all of the land adversely to Edward Hanrick and his estate, as compensation for legal services rendered in...