Illg v. Garcia

• Decision Date: 14 November 1898
• Parties: ILLG v. GARCIA et al.
• Court: Texas Supreme Court

Page 717

47 S.W. 717

ILLG v. GARCIA et al.

Supreme Court of Texas.

November 14, 1898.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Maria De La Luz Garcia and others against John Illg. Judgment for plaintiffs was affirmed by the court of civil appeals (45 S. W. 857), and defendant brings error. Reversed.

Franklin & Cobbs, for plaintiff in error. T. M. Paschal, Joseph Ryan, and H. E. Vernor, for defendants in error.

DENMAN, J.

This suit was brought November 20, 1894, by Maria De La Luz Garcia, joined by her husband and her sister, Josefina Jewett, against John Illg, to recover the title and possession of a lot in San Antonio, Tex., and, in case they should recover less than the entire lot, for partition. By amended petition filed December 17, 1896, plaintiff Josefina Jewett declined further to prosecute the suit, and the same proceeded with said Maria De La Luz Garcia and her husband as sole plaintiffs. Defendant, Illg, pleaded not guilty. Also "that defendant, and those whose title he holds, have had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same, for more than ten years next after plaintiffs' cause of action accrued, and prior to the filing of this suit. Wherefore he says that plaintiffs' right of recovery herein is barred by the statutes of limitation of ten years." Also, in substance, that, if plaintiffs ever owned any interest in the land in controversy, same was a part of a larger lot; that they claimed the same by inheritance from their mother, and now assert that she was a tenant in common with one Jose Gutierrez; that, if said tenancy ever existed, more than 60 years ago Gutierrez disaffirmed same by asserting title to the whole of the lot exclusive in himself, and occupying the same continuously down to 1874, when he conveyed to Conrad Lehman adversely to plaintiffs and their said mother, claiming title to the same exclusively in himself openly and notoriously, paying taxes and erecting improvements thereon; and that, as heretofore averred, his title to the whole of said property was complete under the statutes of limitation at the time of the execution of said deed to Lehman. By supplemental petition, plaintiffs replied to defendant's pleas of limitation that Maria De La Luz Garcia and her husband, who joined her in said petitions, were lawfully married in November, 1862. There were other issues presented by the pleadings of the parties which we deem it unnecessary to notice. On the trial the court instructed the jury to find for plaintiffs an undivided one-fourth of the land in controversy. From a judgment rendered upon the verdict corresponding to said charge, Illg appealed to the court of civil appeals, assigning said charge as error, and, said court having affirmed the judgment, he has brought the case to this court upon writ of error complaining of the charge.

In order to determine the propriety of the charge, it will be necessary to make a general statement of the evidence. Plaintiff introduced a deed from Domingo Perez to Clara Ximenes, dated February 14, 1839, conveying a lot 11 varas wide, in San Antonio, Tex., bounded west by Laredo street, south by the street that leaves the city by the lower end of Military Plaza, and east by the San Pedro creek. Plaintiff testified that Clara Ximenes and her husband, Jose Antonio Gutierrez (the first), left only one child, Jose Antonio Gutierrez (the second), who married Josefa Silva, and left at his death, in 1816, as his only children, Jose Antonio Gutierrez (the third) and Conception Gutierrez, wife of Diego Jewett; that said Conception died in Mexico in 1855, leaving, as her only children, plaintiffs, Josefina and Maria De La Luz, who married her present husband, Garcia, in Mexico, in 1862; that said Josefa Silva, about 1818, soon after the death of her said husband, Jose Antonio Gutierrez (the second), moved to Monterey, Mexico, leaving her son, said Jose Antonio Gutierrez (the third), with his grandmother, said Clara Ximenes, in San Antonio, Tex., and died in Monterey in 1870, at the age of 82 years; that, when said Josefa Silva left San Antonio, she left no power of attorney with her said son, as he was but a child, and was left in charge of his grandmother Clara Ximenes. Plaintiffs next introduced in evidence, for the purpose of proving common source of title only, a deed from themselves to Conrad Lehman, dated October 20, 1875, which instrument, it is admitted, did not convey plaintiffs' title, because her husband did not join therein. Plaintiffs next introduced in evidence a partition deed between said Jose Antonio Gutierrez (the third) and Conrad Lehman, dated January 18, 1876, which instrument set apart to Lehman the eastern portion, and to Jose Antonio Gutierrez the western portion, of the lot conveyed by Perez to Clara Ximenes, as...