Heirs of Dimmitt v. Bowen

• Decision Date: 01 January 1873
• Citation: 39 Tex. 404
• Parties: HEIRS OF P. DIMMITT v. MARY E. BOWEN, EXECUTRIX.
• Court: Texas Supreme Court

39 Tex. 404

HEIRS OF P. DIMMITT

v.MARY E. BOWEN, EXECUTRIX.

Supreme Court of Texas.

1873.

In a suit for land, where the defendant claimed under a deed from the plaintiff, held, to be no error for the court to charge the jury to find for defendant if they believed the plaintiff intended to sell the land in controversy, notwithstanding there was a misdescription in the deed.

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

The heirs of Philip Dimmitt, six in number, brought suit to the fall term, 1868, of the district court, to recover their several portions of a lot of ground in the city of San Antonio, known as the Dimmitt homestead, situated opposite Nat. Louis' old mill, on the San Antonio river, and bounded on the north by Villita street, running parallel with the river; on the east by the Pajalache or Concepcion ditch; on the south by a desaque, or drainage from the ditch to the river, and the river; and on the west by property of the appellee.

All the plaintiffs, with the exception of one Alamo Dimmitt, had, by deed, conveyed their several interests in the homestead to one Zorn, who afterwards, by two deeds, conveyed the same to testator and defendant executrix.

When these five conveyed, the brother Alamo Dimmitt, was under age and could not convey. Alamo Dimmitt became of age not long after Zorn's first deed to Bowen, February 20, 1865. Zorn having paid three hundred dollars to each of the children for their interests as he bought them, told Alamo Dimmitt, in Seguin, that John Bowen would give him three hundred dollars for his interest in the property, the same that he had given the other heirs each for their interests. Alamo Dimmitt shortly afterwards went to San Antonio, and when he returned to Seguin, told Zorn that he had sold to John Bowen his interest in the property, and had got the money for it. Alamo employed one Cleveland, a conveyancer, to write the deed for him, who in describing the property refers to the first deed to Zorn, bounded it on the east by a road leading from the mill between the river and Concepcion ditch. Alamo claimed that the road mentioned in the deed was the one running through the middle of the property, and that he only conveyed the property lying west of it. Cleveland, in drawing the first deed from Zorn to Bowen conveying the entire homestead, made the same mistake in the eastern boundary from the fact, it was contended, that there was formerly a road along the ditch on the...