Huling v. Moore

• Decision Date: 14 March 1917
• Docket Number: (No. 5795.)
• Citation: 194 S.W. 188
• Parties: HULING et al. v. MOORE et al.
• Court: Texas Court of Appeals

194 S.W. 188

HULING et al. v. MOORE et al.

(No. 5795.)

Court of Civil Appeals of Texas. San Antonio.

March 14, 1917.

Rehearing Denied April 11, 1917.

Appeal from District Court, Maverick County; Joseph Jones, Judge.

Action by Thomas B. Huling and others against G. Bedell Moore and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

John Dowell, of Houston, and O. R. Sholars, of Orange, for appellants. Lewright & Douglas, of San Antonio, and Ben V. King, of Eagle Pass, for appellees.

MOURSUND, J.

Appellants Thos. B. Huling, by his guardian, and Maud Edgerton, joined by her husband, sued G. Bedell Moore and Elizabeth Blasdell Moore to recover an interest of 16/32 in three surveys of land in Maverick county, known as survey No. 67, in name of Peter Rockerfellow, survey No. 68 in the name of James Eaves, and survey No. 69 in name of Robert Wheally, each calling for 738 acres of land. The petition first stated a cause of action in the form of trespass to try title and for rents, and then plaintiffs specially pleaded that they were the owners of said interest in the lands by virtue of the fact that said lands were the community property of Thos. B. Huling and Sarah Huling, his first wife; that Sarah Huling died in February, 1839; that Thos. B. Huling died about November 2, 1865; that their only son, Thos. Huling, died about 1899; that plaintiffs are the only children and heirs of Thos. Huling; that said Thos. B. Huling married again, and by his second wife had seven children; that Thos. Huling inherited his mother's half interest in the lands sued for herein, and said Thos. Huling and said seven children by the second wife jointly inherited the other one half of the land; that, therefore, Thos. Huling owned an undivided interest of 18/32 in said land, which was inherited by plaintiffs. Appellees answered by plea of not guilty, a general denial, pleas of limitation of 3, 5 and 10 years, and impleaded their warrantors, and they adopted the answers of defendants.

Appellants replied to the answer with a general demurrer, special exceptions, and a general denial, and pleaded in avoidance of the pleas of limitation the coverture of plaintiff Maud Edgerton, and insanity of plaintiff Thos. B. Huling; also that plaintiffs and defendants were joint owners and tenants in common of the land sued for, and that defendants had never notified plaintiffs of holding adversely to them; also that the lands were situated in an inclosure containing more than 5,000 acres of land; that there was no fence around the lands sued for segregating it as required by law, and that the possession of defendants and those under whom they claimed had never been exclusive as they were joint users with others having lands in the inclosure in which such lands were situated. They also pleaded that defendants were not purchasers of said lands in good faith for value, but had actual and constructive notice of plaintiffs' claim, and were joint owners and tenants in common, and could not be purchasers for value. Defendants, by supplemental answer, denied all of the allegations contained in plaintiffs' supplemental petition. The court instructed the jury to return a verdict in favor of appellees, which, having been done, judgment was entered thereon that appellants take nothing by their suit.

On June 5, 1838, certificate No. 303 was issued to Thos. B. Huling, assignee of James Wheally, for one-third of a league of land, and certificate No. 302 for a like amount of land was issued to him as assignee of Peter Rockerfellow. On June 6, 1838, certificate No. 312 was issued to him as assignee of James Eaves for one-third of a league of land. Huling was a married man at the time he acquired such certificates. His wife, Sarah Huling, died in February, 1839, leaving surviving her her husband and her only child, Thomas Huling. Thomas B. Huling died November 2, 1865. His son, Thomas Huling, died approximately 14 years prior to the institution of this suit, leaving surviving him as his only heirs his two children, Maud Edgerton, wife of Parley Edgerton, and Thomas Huling, the plaintiffs in this cause; the mother of the plaintiffs having died prior to the death of said Thomas Huling. This suit was filed September 28, 1914. Maud Edgerton was born July 29, 1882, and married when she was about 20 years of age. Plaintiff Thomas Huling was born July 26, 1885.

On October 30, 1838, James Huling as attorney in fact for Thos. B. Huling transferred certificate No. 302 to Rafael de la Garza by conveyance reciting the delivery thereof to Garza. On November 12, 1838, James Huling transferred certificates Nos. 303 and 312 to Samuel A. Maverick, and in the transfer recited the delivery of such certificates to said Maverick. This transfer contained a copy of the power of attorney by virtue of which James Huling purported to act for Thomas B. Huling, said power of attorney being dated August 12, 1838, and executed by Thomas B. Huling and Thomas H. Espy.

On December 30, 1838, Rafael Garza transferred certificate No. 302 to Peter Fohr, and on September 8, 1842, Peter Fohr transferred the same to Samuel A. Maverick. The certificates were located upon the lands in controversy. On February 7, 1852, survey 68 was patented to Thos. B. Huling, assignee of James Eaves. On February 9, 1852, survey 69 was patented to said Huling as assignee of Robert Wheally. On October 4, 1870, the will of Samuel A. Maverick was probated; he bequeathed half of his estate to his wife, Mary A., and the other half to his children, Sam, George M., Willie H., Mary B., and Albert. Mary A. Maverick was appointed independent executrix without bond and with power of sale. On July 15, 1873, survey No. 67 was patented to Thos. B. Huling, assignee of Peter Rockerfellow. On January 3, 1876, Mary A. Maverick, in her own right, and as independent executrix of the will of Samuel A. Maverick, conveyed the three tracts of land to Albert Maverick. On January 11, 1879, Albert Maverick executed a power of attorney to W. H. Maverick, authorizing the sale and conveyance of his Texas lands. On May 22, 1882, Albert Maverick, by W. H. Maverick, attorney in fact, conveyed the three surveys to John T. Lytle, Thos. M. McDaniel, and P. W. Thompson, composing the firm of John T. Lytle & Co.

On May 16, 1888, the will of Thomas M. McDaniel was probated, by which his entire estate was left to Josephine McDaniel, his wife. John T. Lytle was appointed independent executor without bond. On June 1, 1889, said Lytle, in his own right and as such executor, and Josephine McDaniel conveyed the three surveys to P. W. Thompson. On June 4, 1897, P. W. Thompson for himself and as survivor of the community estate of himself and Janet E. Thompson, deceased, conveyed the three tracts to T. C. Frost, J. P. Barclay, and J. T. Woodhull. On December 22, 1902, Barclay conveyed said surveys to T. C. Frost. On March 23, 1903, said Frost and Woodhull conveyed the same to P. W. Thompson and to F. V. Blesse as guardian of Walter, Mary, and Kenneth Thompson, minors. On March 21, 1903, said Thompson for himself and as survivor of the community estate of himself and Janet E. Thompson, and F. V. Blesse as guardian of the estate of Walter, Mary, and Kenneth Thompson, conveyed said three surveys to G. Bedell Moore. On November 4, 1908, the will of G. Bedell Moore was admitted to probate, in which his estate was left to his wife, Elizabeth B. Moore, and to any child or children which might survive him of such marriage. In 1909, by decree of the district court, Fifty-Seventh district of Bexar county, confirming partition of the G. Bedell Moore estate, the surveys were awarded to G. Bedell Moore, minor.

The defendants also claim under the following chain of title: On June 1, 1854, Thos. B. Huling conveyed the Eaves and Wheally surveys to M. H. Bowers, and on June 1, 1854, conveyed to said Bowers one-half of one-third of a league out of the headright of Peter Rockerfellow, described as situated in Kinney county and patented to Huling, but date of patent left blank. As the Rockerfellow survey in controversy was not patented until 1873, we cannot identify the same as being the one conveyed to Bowers. On June 8, 1872, the will of W. H. Bowers was probated, by which his estate passed to his wife, Mary M., who, joined by her second husband, in 1892 conveyed the three surveys in controversy to Albert Maverick by special warranty deeds.

It also appears that on March 29, 1890, the children of Thos. B. Huling, by his second wife, conveyed to their mother, Elizabeth Huling, the lands in controversy, and on April 24, 1890, said Elizabeth Huling conveyed the same to C. F. Hodges; also that on May 8, 1893, in cause No. 260, in the district court of Maverick county, entitled C. F. Hodges v. P. W. Thompson, judgment by agreement was entered in favor of Thompson for said lands.

The instruments above mentioned constituted the chains of title under which defendants claimed, and were all admissible in evidence, especially as limitation had been pleaded and it was contended that plaintiffs were cotenants, and that the facts were not sufficient to apprise them that the holding by defendants and their predecessors in interest was adverse to plaintiffs and plaintiffs' father. The objections urged in assignments of error Nos. 2 to 8, inclusive, go to the legal effect of the instruments, and not to their admissibility. Sydnor v. Tex. Savings Ass'n, 42 Tex. Civ. App. 145, 94 S. W. 451. By the ninth assignment complaint is made of the admission of deed from P. M. Thompson and F. V. Blesse, guardian, on the ground that it is a quitclaim deed, and could not support the defense of limitation or that of innocent purchaser for value. The only deed by P. W. Thompson and F. V. Blesse, guardian, is the one to G. Bedell Moore, dated March 21, 1903, and we find that appellants have erred in designating it as a quitclaim deed, for it is a general warranty deed.

In determining the...