Henderson v. Rushing

• Decision Date: 12 October 1907
• Parties: HENDERSON et al. v. RUSHING et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

105 S.W. 840

HENDERSON et al. v. RUSHING et al.^*

Court of Civil Appeals of Texas.

October 12, 1907.

On Rehearing, November 16, 1907.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Trespass to try title by M. M. Henderson and another against J. A. Rushing and others. From a judgment for defendants, plaintiffs appeal. Reversed and rendered.

J. P. Word, Levi Herring, H. J. Cureton, and Jno. J. Hiner, for appellants. E. B. Robertson and C. M. Cureton, for appellees.

SPEER, J.

This is an action of trespass to try title instituted by appellant M. M. Henderson, joined by her husband, to recover from appellees a lot of land situated in the town of Walnut Springs, Tex. The court before whom the case was tried entered a judgment for the defendants, and the plaintiffs have appealed.

The contention of appellants is that upon the facts found by the district judge, there being no statement of facts, judgment should have been entered in their favor. The facts found are: "I find that both plaintiffs and defendants claim the land described in the plaintiffs' plea from a common source, to wit, Chambers. That the plaintiffs claim through a deed from said ____ Chambers to P. Henderson dated January 10, 1901, and filed for record on December 10, 1902. Consideration expressed in said deed was $15 cash and the grantee notes therein, to wit, 14 notes, each for $10, due and payable monthly, except the last note, which is for $5, and that the cash paid at the date of the deed was paid by the grantee, and that the notes were all paid by the grantee, P. Henderson, and that $25 of grantee's money was used in paying said notes, and $60 of said money was furnished by the plaintiff M. M. Henderson, and $20 by the other plaintiff, $25 was furnished by the son of plaintiffs, who was a minor, and that, when all of said notes had been (paid), the grantee demanded of the party who held said notes, to wit, ____ Myers (a release), and which release was executed by said Myers, and a deed from P. Henderson to the plaintiff M. M. Henderson, expressing a consideration of $225, cash and dated 5th day of December, 1902, and filed for record December 10, 1902, and that the consideration was paid in consideration of $105 furnished him to pay the notes he executed for said land when deeded to him, and for services said M. M. Henderson had rendered him prior to that time. I also find that, before said land was bought by Henderson, said P. Henderson and M. M. Henderson had a verbal agreement that said P. Henderson should buy said land for her, but that she furnished no money prior to the purchasing said land on or at the time of the purchasing same to pay for said land. I refer to said deeds and release for a full description of same. I further find that the defendants claimed said land by virtue of a suit brought in justice court precinct No. 3, of Bosque county, Tex., on the 2d day of December, 1902, by defendants in this suit against P. Henderson for $103.50, and on said day and date there was an attachment issued in said case in said justice court in favor of plaintiffs in said justice court, and against P. Henderson, defendant therein, and on said day and date levied on said land in controversy, and that on 14th day of February, 1903, there was a judgment rendered in said case in said justice court in favor of plaintiffs therein and against the defendant P. Henderson for $103.50, and costs of suit, and reciting the levy and issuance of said attachment, and that on the 27th day of August, 1903, there was an execution issued on said judgment and duly levied on said land and duly advertised and sold on 1st Tuesday in October, 1903, and bought by plaintiffs in execution and defendants in this suit for $85, which bid was credited on said judgment, and deed duly executed by the officer to plaintiffs in said execution for said land."

We sustain appellants' contention, for the following...