Hilburn v. Harris

• Decision Date: 23 February 1893
• Parties: HILBURN v. HARRIS et al.
• Court: Texas Court of Appeals

21 S.W. 572

HILBURN v. HARRIS et al.

Court of Civil Appeals of Texas.

February 23, 1893.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Trespass to try title by E. R. Harris and others against N. C. Hilburn. From a judgment for plaintiffs, defendant appeals. Reversed.

Bell & Green, for appellant. Potter, Potter & Mathis, for appellees.

HEAD, J.

Some time prior to 1843, Dr. G. W. Long died in this state, and administration was had upon his estate in Ft. Bend county. At the time of his death, Dr. Long left surviving him his wife and seven whole brothers and sisters and four half-brothers and sisters, but no children. He left a considerable estate, consisting of land and personal property, among which was his own headright certificate for 1,280 acres of land. One of his sisters of the whole blood was Mary Williams, wife of Duke Williams; one of his brothers of the whole blood was Edward M. Long; three of his brothers of the half blood were N. T., W. H., and J. J. Macon. Prior to the partition herein referred to, the four last named conveyed all their interest to Duke Williams, husband of Long's sister Mary, above named. On June 1, 1853, one of the parties interested in the estate of Long filed a petition in the probate court of Ft. Bend county for a partition of said estate, making Duke Williams, with several of the heirs, parties thereto, but did not join Mary Williams, Edward M. Long, and the three Macons above named, therein. The nonresident heirs who were made parties were duly cited by publication. On the 25th day of July, 1853, this original petition for partition was amended, making the heirs who had not been joined as above set forth parties to such proceeding, and dismissing as to Duke Williams. It appears from this amendment that these new parties were nonresidents of this state. At the July term, 1853, a decree was entered ordering the partition of this estate, but it does not appear from the record that all the parties had been regularly cited to answer plaintiff's petition other than by a general recital in the judgment. At the August term, 1853, the commissioners appointed by the above judgment made their report, which was confirmed, and by the partition so made the 1,280-acre certificate above referred to was given to Mary Williams, Edward M. Long, and the three Macons above named, so that by the terms of the decree, in connection with the transfers to Duke Williams, above recited the whole of this certificate became vested in Duke Williams and his wife, Mary. The land in controversy was afterwards located under contract with Duke Williams by virtue of this certificate. In 1864 or 1865, Duke Williams died, leaving his wife, Mary Williams, and five sons and daughters, surviving him. Appellees claim the interests of two of these children, and appellant the remainder, and the court below rendered judgment upon this basis in favor of appellees, from which this appeal is prosecuted. Appellant claims under a deed made by Mary Williams, the surviving wife, to J. J. Williams and M. F. Kennedy, the last named being husband of one of the daughters.

Appellant's first assignment of error attacks the validity of the decree of partition above referred to, upon the ground that it affirmatively appears from the record that Mary Williams, Edward M. Long, and the three Macons were nonresidents of this state, and had never been properly served with citation; but we are of opinion that, inasmuch as this decree constitutes the common source of title of appellant and appellees, its validity is not material in this case. Had appellant proposed to show that his interest would have been greater by disregarding this decree than by upholding it, he would not be precluded from so doing; but, inasmuch as his interest as well as appellees' in the land in controversy would be reduced by going back of the decree, we think he should be held to the common source. Burns v. Goff, 79 Tex. 236, 14 S. W. Rep. 1009. It would therefore seem that appellant's and appellees' interest is the same, whether the decree be held valid or whether it be only held as evidence of a common source of title, and, if this was the only cause of complaint, the judgment of the court below should be affirmed. Appellant, however, after the rendition of the judgment in the court below, made a motion for a new trial, upon the ground of newly-discovered evidence, which was overruled, and this action of the court is assigned as error. By this newly-discovered evidence it is proposed to prove that in their lifetime Duke and Mary Williams entered into a verbal contract with their son J. J. Williams to give him this land, with other property, in consideration of his agreement to...