Ivey v. Williams

• Decision Date: 02 December 1890
• Citation: 15 S.W. 163
• Parties: IVEY <I>et al.</I> v. WILLIAMS <I>et al.</I>
• Court: Texas Supreme Court

Page 163

15 S.W. 163

IVEY et al. v. WILLIAMS et al.

Supreme Court of Texas.

December 2, 1890.

Appeal from district court, Smith county; FELIX J. McCORD, Judge.

C. G. White and J. M. Edwards, for appellants. Woldert & Johnson and Whitaker & Bonner, for appellees.

GAINES, J.

This suit was brought by Susan V. Durrum to recover an undivided one-half interest in a parcel of land in the city of Tyler. She died during its progress, and her administrator and heirs made themselves parties. Judgment having gone against them, the administrator appeals. The petition was in the form provided by the statute for the recovery of land. The plaintiffs introduced in evidence a regular chain of title from the state down to Ira Ellis, a deed from Ira Ellis to Craig Wren and John Tipps, to the land in controversy, and the will of John Tipps, devising all his property to his daughter, Susan V. Tipps. They also introduced testimony to show that the original plaintiff was Susan V. Tipps; that she was married to one Durrum, April 14, 1864; that he died in 1885, and that she died in 1889. It was also proved that the persons who, after her death, made themselves parties plaintiff, as her sole heirs, were in fact such. The defendants, who had pleaded not guilty, and the several statutes of limitation, showed regular chains of title to the parcels of land respectively claimed by them from John Lucky and wife, dated in 1871. Whence Lucky derived his title does not appear. They also introduced evidence tending to show adverse possession of the land from a time previous to the marriage of Susan V. Durrum, and that the possession had been continuous until the bringing of this suit. The plaintiffs also introduced testimony tending to prove that the premises were never occupied until after the marriage, in 1864. The court charged the jury, among other things, as follows: "If the proof shows a title from the state of Texas down to Ira Ellis, and a deed from Ira Ellis to Craig Wren and John Tipps, and by will, duly executed, devised by John Tipps to his daughter, Susan V. Tipps, and you further find that the plaintiffs are the heirs of said Susan V. Tipps, you will find for plaintiffs an undivided one-half interest in said land, unless defeated by other portions of this charge." The plaintiffs requested the court to give the following special instruction: "The plaintiffs have introduced in evidence a regular chain of title from the state of Texas to Craig Wren and John Tipps, and the will of John Tipps, bequeathing to his daughter, Susan Victoria Tipps, all of his estate, real and personal, by which plaintiff, if you find that she is the said Susan V. Tipps, became the owner of an undivided half interest in and to the three acres sued for; and the defendants having introduced no proof divesting her of said title, you will find for plaintiffs, unless the defendants show title by reason of limitations." It is assigned that the court erred in giving the former and refusing the latter instruction....