Hunter v. Eastham

• Decision Date: 18 April 1902
• Citation: 67 S.W. 1080
• Parties: HUNTER et al. v. EASTHAM et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

67 S.W. 1080

HUNTER et al. v. EASTHAM et al.¹

Court of Civil Appeals of Texas.

April 18, 1902.

Appeal from district court, Walker county; J. M. Smither, Judge.

Action by Beverly Hunter and others against Della Eastham and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

McKinney & Hill, for appellants. Ball, Dean & Humphrey, for appellees.

PLEASANTS, J.

This is an action of trespass to try title, brought by appellants to recover 250 acres of land in Walker county. The defendants answered by general exception and plea of not guilty. The cause was tried by the court below without the intervention of a jury, and judgment rendered in favor of the defendants, from which judgment plaintiffs below prosecute this appeal.

The facts disclosed by the record are as follows:

Beverly and Caroline Hunter, deceased, are the common source of title. The appellants are the children of said Beverly and Caroline. Caroline died in 1892 or 1893, and Beverly in 1899 or 1900. Both died in the state of Kansas. They owned and occupied the premises in question as their homestead in 1879, but left the place in that year, moved to Kansas, and never returned to Texas. A short time before they moved away, they executed and delivered to Robert Hunter the following power of attorney:

"Power of Attorney from Beverly and Caroline Hunter to Robert Hunter. Riverside, Texas, Nov. 26th, 1879. Know all men by these presents that we, Beverly and Caroline Hunter, do hereby empower Robert Hunter to sell all our land which is situated in county of Walker and state of Texas, known as the `Silas Morgan Place,' and containing 200 acres, more or less.

                                            his
                                    "Beverly X Hunter
                                           mark
                                            her
                                   "Caroline X Hunter.'
                                           mark
                

This power of attorney was filed for record on May 19, and duly recorded in the deed records of Walker county on May 26, 1880. On January 5, 1880, Robert Hunter conveyed the land to W. R. Pace by deed of said date, which recited a cash consideration of $112.50. This deed was filed for record on May 21, and duly recorded on May 27, 1880. Pace, for a consideration of $145.25, conveyed the land to B. Eastham, the ancestor of appellees, on December 1, 1880, by deed of said date, which was duly recorded in the deed records of Walker county on the day of its execution. The premises in controversy were known as the "Silas Morgan Place," and it was the only land ever owned by Beverly and Caroline Hunter in Walker county. B. Eastham died in 1883. He and his legal representatives have paid all taxes on the land since 1879. Neither Beverly nor Caroline Hunter ever asserted any claim to the property after its sale by Robert Hunter to Pace. The consideration of the sale by Robert Hunter to Pace was the cancellation and discharge of a note due by him to Pace. Robert Hunter paid Beverly and Caroline Hunter nothing for the land, and never informed them that he had sold it. The consideration mentioned in the deed from Pace to B. Eastham was actually paid the latter, and there is no evidence tending to show that he had any notice of the fact that the consideration of the sale by Robert Hunter to Pace was the satisfaction of a debt due by the latter. Omitting the caption of the deed from Robert Hunter, it is as follows:

"Know all men by these presents, that I, Robert Hunter, in consideration of the sum of one hundred and twelve 50/100 dollars to me in hand paid by W. R. Pace, the receipt of which is hereby acknowledged, have bargained, granted, sold, by these presents do grant, bargain, sell, and release to the said W. R. Pace, all my right, title, and interest in and to the following tract or parcel of land, by my right under power of attorney from Beverly Hunter and Caroline Hunter, said to contain 250 acres of land (for a full description, see deed and bond for title and S. Gibbs' release, in Book O, pages 73, 74, 75, & 76 of county records, from Silas Morgan and wife to Beverly Hunter), together with, all and singular, the rights, members, hereditaments, and appurtenances to the same belonging or in any wise incident or appertaining. To have and to hold, all and singular, the premises above mentioned, unto the said W. R. Pace, his heirs and assigns, forever. And I do hereby bind myself, my heirs, executors, and assigns, to warrant and forever defend, all and singular, the said premises unto the said W. R. Pace, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof. Reference is also made to the power of attorney recorded in Book ____, page ____, of Walker County Records, which original power of attorney is made...