Houston Oil Co. of Texas v. Griggs

• Citation: 181 S.W. 833
• Decision Date: 02 December 1915
• Docket Number: (No. 14.)
• Parties: HOUSTON OIL CO. OF TEXAS v. GRIGGS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

181 S.W. 833

HOUSTON OIL CO. OF TEXAS v. GRIGGS.^*

(No. 14.)

Court of Civil Appeals of Texas. Beaumont.

December 2, 1915.

Rehearing Denied January 6, 1916.

Error from District Court, Newton County; A. E. Davis, Judge.

Trespass to try title by the Houston Oil Company of Texas against R. H. Griggs and others. There was a judgment in favor of the named defendant, and plaintiff brings error. Reversed and rendered.

H. O. Head, of Sherman, and Parker & Kennerly and H. O. Head, of Houston, for plaintiff in error. Forse & Hamilton, of Newton, for defendant in error.

CONLEY, C. J.

This was an action of trespass to try title, brought by the appellant, Houston Oil Company of Texas, against J. S. Griggs, Marion Griggs, and R. H. Griggs, for the recovery of 220 acres of land, a part of the Sampson Watson 320-acre survey, granted by the state of Texas to Sampson Watson on February 8, 1859. The petition is in regular form for suits of that nature. The case was tried by the court, without the intervention of a jury, and judgment was rendered for the appellant for only 137½ acres, and in favor of the defendant R. H. Griggs for 82½ acres; the other two defendants in the original suit having disclaimed. The appellant excepted to the judgment of the court in not awarding it the full amount of the land sued for, to wit 220 acres, and perfected its appeal, and the suit is now properly before this court.

The trial court filed findings of fact and conclusions of law, which are as follows:

Findings of Fact.

In compliance with the request of the plaintiff, filed herein, for findings of facts and conclusions of law, the court makes and files the following:

(1) I find that on the 8th day of February, 1859, the state of Texas patented to Sampson Watson a survey of 320 acres of land, same being patent No. 999, volume 17, and said patent being issued by virtue of a pre-emption certificate issued to said Sampson Watson.

(2) I find that on October 15, 1859, Sampson Watson and wife conveyed said 320-acre tract of land to Elizabeth O. Griggs, of Newton county, Texas, for the recited consideration of $125 cash.

I find that on April 16, 1890, Elizabeth O. Griggs executed a power of attorney to C. E. Smith, of Newton county, Texas, authorizing said Smith to sell and convey 220 acres of said Sampson Watson survey, described in said power of attorney by metes and bounds, and being the same 220 acres of land in controversy in this suit, and being the west 220 acres of said 320-acre Sampson Watson survey, which power of attorney was witnessed by F. N. Griggs.

I find that the certificate of acknowledgment to said power of attorney describes said Elizabeth O. Griggs as Mrs. Elizabeth O. Griggs, and that said certificate was otherwise in form the certificate of acknowledgment provided by law to be used to attest the acknowledgment of a woman not under coverture, and that in the body of the deed the name of the grantor appeared simply Elizabeth O. Griggs.

I find that under said power of attorney the said 220 acres of the Sampson Watson survey, being the land in controversy herein, was conveyed by and through a regular chain of conveyances to the plaintiff, Houston Oil Company of Texas; said 220 acres being described by metes and bounds in all the deeds composing said chain of conveyances.

(3) I find that in the year 1857, and for a number of years prior thereto, there lived in Wardville, Walton county, Florida, a man by the name of Berry Griggs, Sr.; that some 15 to 18 years prior to 1857 said Berry Griggs, Sr., was legally married to a woman by the name of Polly Cottonhead, by whom he had several children, among which children were Wm. Griggs, Mitchell Griggs, and Berry Griggs, Jr.; that said William Griggs grew to manhood in Florida, prior to 1857, and was married to a woman whose maiden name the record does not disclose, but whose name, after her marriage to said William Griggs, was Elizabeth O. Griggs; that said William Griggs died, and the wife of Berry Griggs, Sr., died; and that after their death said Berry Griggs, Sr., father of said William Griggs, and said Elizabeth O. Griggs, widow of William Griggs, lived and cohabited together and had children born to them in Florida.

I find that said Berry Griggs, Sr., and Elizabeth O. Griggs bore the relationship to each other of father-in-law and daughter-in-law, and that said Elizabeth O. Griggs and Berry Griggs, Sr., were never married by license and ceremony in said state of Florida.

(4) I find that in the latter part of the year 1857, or the early part of the year 1858, said Berry Griggs, Sr., and Elizabeth O. Griggs fled from the state of Florida to escape prosecution for living and cohabiting together without having been married, and that they left Florida in the night and came to Texas, bringing with them two children of said Berry Griggs, Sr., by his first wife, viz. Berry Griggs, Jr., and Mitchell Griggs, and also bringing with them two children of said Berry Griggs, Sr., by Elizabeth O. Griggs, viz. Lee Griggs and Frank Griggs.

(5) I find that these parties reached Newton county, Texas, in the spring of the year 1858, and settled and made their home in said Newton county, Texas, and lived and resided on said Sampson Watson survey, after same was acquired by said Elizabeth O. Griggs.

(6) I find that after reaching the state of Texas said Berry Griggs, Sr., and Elizabeth O. Griggs continued to live and cohabit together as man and wife, and raised a family of children in Newton county, Texas, and that said Elizabeth O. Griggs was held out by said Berry Griggs, Sr., as his wife, and that there were born to them seven children after they reached Newton county, Texas, making a total of nine children in all born to them.

(7) I find that the said Berry Griggs, Sr., and Elizabeth O. Griggs lived together, as hereinbefore stated, as man and wife, up until the year 1881, when said Berry Griggs, Sr., died, leaving surviving him two children by his first marriage with Polly Cottonhead, which children were Berry Griggs, Jr., and Mitchell Griggs, and eight children by Elizabeth O. Griggs; one of the children by Elizabeth O. Griggs having died prior to the death of said Berry Griggs, Sr.

(8) I find that Berry Griggs, Sr., and Elizabeth O. Griggs, because they could not marry in Florida, moved to Texas.

(9) I find that the defendants herein have adduced before me no testimony as to the law of the state of Florida, at the time Berry Griggs, Sr., and Elizabeth O. Griggs began to live and cohabit together, and during the time of their living together in said state of Florida, on the question of whether or not there could have been a valid common-law marriage in said state of Florida between said parties.

(10) I find that the defendants herein, and those through whom they claim, have not had peaceable, continuous, and adverse possession of the land in controversy herein for any sufficient length of time or in a sufficient manner to mature title in them under either the three, five, or ten year statutes of limitation of the state of Texas.

(11) I find that the defendant R. H. Griggs has acquired all the title to the land in controversy herein held by six of the eight children of said Berry Griggs, Sr., and Elizabeth O. Griggs, who survived said Berry Griggs, Sr.

I find that at her death, which occurred subsequent to the year 1890, the said Elizabeth O. Griggs died intestate as to the 100 acres of said Sampson Watson 320-acre survey remaining after her sale of 220 acres in controversy herein by her attorney in fact to Jas. E. Price, and that after her death the children of said Berry Griggs, Sr., by Elizabeth O. Griggs, appropriated said 100 acres to their own use and benefit, sold same, and received and used the proceeds thereof.

Conclusions of Law.

1. I conclude that the burden of proof herein was upon the defendants, holding the equitable title derived through inheritance of the community estate of their deceased father, Berry Griggs, Sr., to six-eighths of one-half of the land in controversy herein, to show that the plaintiff, Houston Oil Company of Texas, and those under whom it holds, were not innocent purchasers of the land in controversy herein as against said equitable title derived by inheritance of the community estate, and I conclude that said burden of proof has been met by defendants herein when it was shown that the certificate of acknowledgment to the power of attorney from Elizabeth O. Griggs to C. E. Smith describes said Elizabeth O. Griggs as Mrs. Elizabeth O. Griggs, and that this description of said Elizabeth O. Griggs was sufficient to put the predecessor in title of the plaintiff herein on notice that said Elizabeth O. Griggs had been or was at the time of the acknowledgment a married woman, which notice, if followed up by inquiry, would have resulted in the ascertainment of the fact that said Elizabeth O. Griggs had been the wife of Berry Griggs, Sr., and that she at that time had children as the fruit of her common-law marriage with the said Berry Griggs, Sr., which children were entitled to the community interest of said Berry Griggs, Sr., in the land in controversy herein, and that there is no other testimony in the record, except the certificate of acknowledgment hereinabove referred to, tending to put the plaintiff herein and its predecessors in title on notice as to the claim of the defendants herein, and those under whom he claims.

2. I conclude that the defendant herein has no title to the land in controversy under and by virtue of the three, five, or ten year statutes of limitation of the state of Texas.

3. I conclude that under the law of the state of Texas, as it existed when Berry Griggs, Sr., and Elizabeth O. Griggs reached the state of Texas, a marriage between said Berry Griggs, Sr., and Elizabeth O. Griggs was not prohibited by the laws of the state of Texas; the only prohibition in the law in force at that time, on said subject, being the act of ...