Herndon v. Burnett

• Decision Date: 08 March 1899
• Citation: 50 S.W. 581
• Parties: HERNDON v. BURNETT et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W. 581

HERNDON v. BURNETT et al.¹

Court of Civil Appeals of Texas.

March 8, 1899.

Appeal from district court, Harris county; William H. Wilson, Judge.

Action by A. C. Herndon, guardian of Frederick Cole, against J. H. Burnett and others. Certain persons intervened. Judgment for defendants and interveners, and plaintiff appeals. Affirmed.

Baker, Botts, Baker & Lovett and J. R. Masterson, for appellant. J. M. McCord and Ewing & Ring, for appellees.

FLY, J.

This is an action of trespass to try title to the lower half of the William Vince survey, in Harris county, less a labor out of the northwest part thereof, and less 400 acres off of the east part thereof, instituted by A. C. Herndon, as guardian of the estate of Frederick Cole, a person of unsound mind, against John H. Burnett and Cora Bacon Foster. Lizzie M. Clardy and her husband, J. F. Clardy, and W. A. Evans were made parties, on their covenants of warranty to Burnett; and George Kuhns, G. Slagle, Daniel McCormick, L. J. Yarnell, and J. T. Mason intervened, alleging that during the pendency of the suit they had purchased parts of the land in controversy, and had improved the same, and they asked to defend against the claim of appellant, adopting the answer of Burnett and Foster. The cause was tried by jury, and resulted in a verdict and judgment in favor of defendants and interveners for the land in controversy. Frederick Cole claims as a son and heir of Jeremiah Cole and Elizabeth Cole. He introduced in evidence a conveyance by William Vince, the patentee, to Edward Dickinson, and also introduced the following instrument, signed by Dickinson: "Columbia, Brazoria County, May 1st, 1838. I do hereby transfer all my right, title, and interest to Jeremiah Cole, for the consideration of twenty-five hundred dollars to me in hand paid, the receipt of which is hereby acknowledged before the undersigned witnesses, as witness my hand and seal day and date as above to the within deed." The court submitted the cause to the jury on three issues: First. Was the above copied instrument indorsed upon the deed from Vince to Dickinson? Second. Was Frederick Cole the child and issue of Jeremiah Cole and Elizabeth Cole? Third. If the jury should find that the transfer was indorsed on the deed aforesaid, were the circumstances in proof such that a deed from Jeremiah Cole should be presumed? The jury found a general verdict for appellees, and we conclude that there was testimony sufficient to justify the jury in finding for appellees on all three issues.

The following charge given by the court is attacked as erroneous by appellants: "Should the jury determine that Jeremiah Cole became the owner of said land, and that the said Frederick is the child and issue of said Jeremiah and his wife, Elizabeth, then the jury will inquire whether they will indulge the presumption of a sale, deed, or release by Jeremiah Cole of said land, as now to be explained. The law on this point is that a deed or sale may be shown by circumstances, like any other fact, the presumption being a question for the decision of the jury; and in this connection the jury are advised that up to January 18, 1840, a verbal sale of land, accompanied with possession, was as valid as a written one. If, then, the jury believe, upon a fair consideration of all the circumstances in the case (those which the jury may believe to repel as well as those which the jury may believe to favor such presumption), that the circumstances are consistent with the inference or presumption that such sale, release, or deed was made as claimed by defendants and interveners, and that, in view of all the circumstances, it is more reasonably probable that...