Hayden v. Kirby

• Decision Date: 12 February 1903
• Citation: 72 S.W. 198
• Parties: HAYDEN et al. v. KIRBY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 198

HAYDEN et al. v. KIRBY et al.^*

Court of Civil Appeals of Texas.

February 12, 1903.

Appeal from district court, Hardin county; L. B. Hightower, Judge.

Action by Sarah L. Hayden and others against John H. Kirby and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

John P. Work, Lemuel D. Lilly, O'Brien, Bordages & O'Brien, and Smith, Crawford & Sonfield, for appellants. Lanier & Martin, for appellees.

PLEASANTS, J.

This is an action of trespass to try title, brought by appellants, Sarah L. Hayden, William B. Hayden, Chas. H. Hayden, and Albert L. Hayden, against the appellees, John H. Kirby, W. L. Moody, and Lit Swearengen, to recover a survey of 1,476 acres of land in Hardin county, Tex., patented to the heirs of Washington R. Griffin. The original petition was filed in the district court of Hardin county on December 20, 1900. In this petition, which is in the ordinary form of a petition in an action of trespass to try title, plaintiffs, who are all nonresidents, allege that they "sue in their capacity as executors and trustees of the last will of Peter Hayden, deceased." On April 1, 1901 and 1902, respectively, the defendants Kirby and Swearengen each filed an answer consisting of a general demurrer, general denial, and plea of not guilty. The defendant W. L. Moody filed a disclaimer on March 23, 1901. On April 7, 1901, the plaintiffs filed their first amended original petition, which contains the following allegations: "Your petitioners, Sarah Leverett Hayden, a feme sole, William B. Hayden, Charles Hayden, and Albert L. Hayden, hereafter called `plaintiffs,' complaining of W. L. Moody, Lit Swearengen, and of John H. Kirby, hereinafter called `defendants,' represent that said Sarah Leverett Hayden and William B. Hayden are resident citizens of the city of New York, in the state of New York, said Charles Hayden is a resident citizen of Colorado Springs, in the state of Colorado, and that Albert Hayden is a resident citizen of the city of Chicago, in the state of Illinois; that the defendant W. L. Moody is a resident citizen of the county of Galveston, in the state of Texas, and the defendant John H. Kirby is a resident citizen of the county of Harris, in the state of Texas, and the defendant Lit Swearengen is a resident citizen of Hardin county, Texas; that plaintiffs are the duly qualified, acting, and surviving executrix and executors and trustees of and under the last will and testament of Peter Hayden, deceased; that said Peter Hayden departed this life about the 6th day of April, 1889, testate, and his last will and testament was duly probated in the surrogate court, in the county of New York, in the state of New York, under the laws of said state, and a certified copy of said will, the order and decree of said court admitting said will to probate, together with other proceedings had in said court in the matter of the probate of said will, were duly recorded in the deed records of Hardin county, Texas, in Book U, on pages 234, etc., and were also duly recorded in the deed records of various other counties in the state of Texas; that the said Sarah Leverett Hayden is the surviving wife of said Peter Hayden, and the other plaintiffs herein are the children of said Peter Hayden, deceased; that said plaintiffs, as such surviving wife and as such children, together with the other descendants of said Peter Hayden, are the only heirs of said Peter Hayden; that the said Peter Hayden during his lifetime was lawfully seised and possessed of, in fee simple, and was entitled to the possession of, the lands and premises hereinafter described; that upon the death of said Peter Hayden these plaintiffs became lawfully seised and possessed of, and entitled to the possession of, said lands and premises, and on the 1st day of January, 1900, were so lawfully seised and possessed of, and entitled to the possession of, the same, holding the same in fee simple; that thereafter, on the day and year last aforesaid, the defendants, and each of them, entered upon said premises and ejected plaintiffs therefrom, and wrongfully withhold from plaintiffs the possession thereof, to their damage of one thousand dollars; that the premises so entered upon and wrongfully withheld by defendants from plaintiffs are situated within the county of Hardin, in the state of Texas, and are bounded and described as follows." After describing the land, the petition, by proper allegations, sets up title to the land in plaintiffs under the five and ten years statutes of limitation, and closes with prayer for judgment for the title and possession of the land, for writs of possession and restitution, for rents and damages, and for general relief. To this amended petition the defendants Kirby and Swearengen on April 7, 1902, filed the following plea in abatement:

"No. 704. Sarah L. Hayden et al. v. John H. Kirby et al. In the District Court of Hardin County, Texas. To the Honorable District Court of Hardin County, Texas. In the above styled and numbered cause now come the defendants John H. Kirby and Lit Swearengen, and amend their original answer filed in said cause, by leave of the court first obtained (said Kirby's having been filed April 1, 1901, and that of defendant Swearengen April 1, 1902), and file this, their first amended original answer, in lieu thereof, and allege as follows, to wit: (1) These defendants plead in abatement of above styled, entitled, and numbered suit, and allege that it appears from the allegations of plaintiffs in their first amended original petition, filed herein on the 7th day...