Herndon v. Davenport

• Decision Date: 06 December 1889
• Court: Texas Supreme Court
• Parties: HERNDON <I>et al.</I> <I>v.</I> DAVENPORT <I>et al.</I>

12 S.W. 1111

HERNDON et al.v.

DAVENPORT et al.

Supreme Court of Texas.

December 6, 1889.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

F. P. Powell, for appellants. Grace & Templeton, for appellees.

STAYTON, C. J.

Appellants brought this action to recover 171 acres of land patented to them as the heirs of John H. Herndon, by patent issued December 6, 1887. The defendants claim by regular chain of transfer from A. C. McCartney, to whom it is claimed that John H. Herndon sold the land certificate by virtue of which the land was patented. Plaintiffs introduced the patent; proved that John H. Herndon died in July, 1879, and that they were his heirs. On behalf of defendants it was proved that the land in controversy was located by virtue of William Nabors' certificate No. 3116, issued May 1, 1838, and transferred from Nabors to S. M. Frost August 25, 1838, and from Frost to John H. Herndon, October 8, 1859. Certified land-office copies of these transfers were introduced in evidence. It was proved that John H. Herndon, in 1859, dealt extensively in land and land certificates, and his pecuniary condition was good, and continued so until 1865, from which time until his death he was pecuniarily embarrassed. He died in July, 1879. On June 6, 1861, A. C. McCartney made application to the county surveyor of Ellis county for a survey by virtue of this Nabors certificate 3116, and in April, 1862, a survey of the land in controversy was made by virtue of this application; and the application, certificate, and field-notes were filed in the land-office September 13, 1863. On March 1, 1876, A. C. McCartney conveyed the land embraced in this survey, and in controversy, to D. B. Bullard, by warranty deed, and subsequently Bullard and J. D. Templeton sold the land in different parcels to appellees, and those under whom they claim. In the same transfer, by which Frost conveyed to John H. Herndon the Nabors certificate 3116, he also conveyed two other certificates, to-wit, No. 8037, to Frost, as assignee of Matthew R. Williams, and the William Nabors, No. 541. It was shown that John H. Herndon transferred these two certificates in his life-time, and never claimed the land located by virtue of them. The transfer by William Nabors to S. M. Frost included his two certificates, 3116 and 541, and was filed in the land-office with "file 541." On December 31st, John H. Herndon filed his voluntary petition to be adjudicated a bankrupt in the United States court, at Galveston, accompanied by the affidavits and schedules of debts and liabilities required by law, which schedule did not contain the Nabors certificate 3116, nor any land located by virtue of it, upon which application an assignee of the estate of applicant was appointed; and the applicant was duly adjudicated a bankrupt, and in November, 1869, received his discharge. In 1876, John H. Herndon made a memorandum in his diary to the effect that this William Nabors certificate No 3116 had been located on 171 acres of land on Onion creek, in Ellis county, and this memorandum, coming to the attention of his son, A. C. Herndon, in August, 1887, caused him to investigate the matter; and he, finding, from the...