Johns v. Northcutt

• Decision Date: 01 January 1878
• Citation: 49 Tex. 444
• Parties: C. R. JOHNS ET AL. v. JESSE J. NORTHCUTT ET AL.
• Court: Texas Supreme Court

49 Tex. 444

C. R. JOHNS ET AL.

v.JESSE J. NORTHCUTT ET AL.

Supreme Court of Texas.

1878.

APPEAL from Travis. Tried below before the Hon. E. B. Turner.

April 20, 1875, Jesse J. Northcutt and about sixty others brought trespass to try title, in the District Court, against C. R. Johns, F. Everett, Wm. Von Rosenberg, and S. J. Swenson, for about 3,000 acres of land patented to Henry Martin.

June 10, 1875, defendants pleaded not guilty and general denial.

November 1, 1876, defendants specially answered that the land in controversy belonged to one Jesse J. Robinson at his death, in 1862; that by a judgment and decree of the District Court of Sabine county, Texas, rendered April 9, 1873, L. J. and J. C. Robinson were adjudged to be the heirs and only heirs of said Jesse J. Robinson, and as such entitled to receive his estate, embracing the land in controversy, which judgment has never been vacated, annulled, or reversed, but is still a valid and subsisting judgment.

That on May 5, 1874, said L. J. and J. C. Robinson, being seized and in possession of said land, had in their custody all the original title papers, showing complete chain of title from the State to the said Jesse J. Robinson, and a certified copy of said judgment and decree adjudging them to be the only heirs of the said Jesse J. Robinson, deceased, all of which were exhibited to defendants; that said L. J. and J. C. Robinson sold said land to defendant S. J. Swenson for $4,605, Swenson believing the title to be perfect, as it appeared to be be and was on its face; and that Swenson paid the purchasemoney in good faith, and received deed from said vendors with general warranty, and entered into possession under said deed; that thereafter Swenson conveyed one-half of said land to Johns, Everett, and Rosenberg. The defendants alleged the payment of the purchase-money, and innocence on the part of the purchasers of any defect in the title.

Defendants further insisted, that on account of the laches of the plaintiffs in asserting their rights, if any, and permitting defendants to expend money in purchasing the legal title to said land, in event of recovery by plaintiffs they should be required to refund the purchase-money to defendants.

In replication filed May 3, 1877, plaintiffs denied all the allegations in defendants' amended answer, and alleged that if there was any such judgment or decree of the District Court of Sabine county, Texas, as alleged by defendants in their amended answer, the same was rendered without jurisdiction of the proceeding wherein the same was attempted to be acted on by said court, and that plaintiffs were in no way made parties to said proceedings, and that they had no notice of the same, and said pretended decree is null and void; of all which defendants had knowledge, or could, with proper diligence, have had knowledge.

On same day, May 3, plaintiffs filed an amended petition, correcting the names of many of the plaintiffs and adding other new plaintiffs, and asked for a decree of partition acknowledging that defendants were entitled to the share of their vendors in the land, being two-sixtieths.

May 4, 1877, defendants replied, denying the allegation in plaintiffs' amended petition.

Defendants claimed surprise at the amended petition, and asked that the case be postponed to a later day in the term. The court refused to delay the case. Trial was had May 4, 1877, and the court rendered judgment for the plaintiffs for fifty-eight-sixtieths of the land, and for defendants two-sixtieths, and against defendants for all costs up to the rendition of the judgment, and awarding partition.

Motion for new trial was overruled, and defendants appealed.

The facts as agreed upon by the parties are--

1. That Jesse J. Robinson died in the county of Sabine, State of Texas, in the year 1862, being seized in fee of the premises in controversy.

2. That letters of administration were granted on the estate of said Jesse J. Robinson, in said county and State, in the same year, (1862,) shortly after his death.

3. That the said Jesse J. Robinson at the time of his death left no wife, child, descendants, parents, nor brothers or sisters surviving him; that at the date of his death he left surviving him sixty nephews and nieces, who were either living or had left descendants; that all of the plaintiffs named in the plaintiffs' original and amended petitions were either nephews and nieces of Jesse J. Robinson or descendants of nephews and nieces, except as to certain persons named in plaintiffs' petition, to wit: L. M. New, Joshua Marbut, Nancy Wiggins, Luke Woods, Angelina Knight, Wyatt Snow, Catherine Duncan, Sarah Singleton, and Elizabeth Phillipse. And as to the heirship of the above-named parties, A. J. Harris, a witness for the plaintiffs, and one of the plaintiffs, testified as follows: “I have learned, by correspondence with William New (the husband of Lydia New) and L. M. New, of Corinth, Mississippi, that said L. M. New is a child and sole heir of said Lydia New, said Lydia New being a daughter of Luke Robinson and niece of Jesse J. Robinson, deceased. From Sarah Miner, (wife of M. S. Miner,) I learn that the descendants of Mary Marbut are Joshua Marbut and Nancy Wiggins, and that Luke Woods is the sole descendant of Charlotte Woods; the said Mary Marbut and Charlotte Woods being also daughters of Luke Robinson and nieces of Jesse J. Robinson, deceased. By letters received by me from Wyatt Snow, Sarah Singleton, and Catherine Duncan, (whom I learned to be heirs and children of Narcissa Snow from Jesse J. Northcutt and Toliver Webb,) I have ascertained that the following persons are the children and only heirs of Narcissa Snow, to wit: Angelina Knight, Wyatt M. Snow, Benjamin Snow, Catherine Duncan, Sarah Singleton, and Elizabeth Phillipse; the said Narcissa Snow being a daughter of Christian Webb and niece of Jesse J. Robinson, deceased. And I am satisfied that the information so obtained is correct, and that the persons named above, and other plaintiffs mentioned in the original and amended petitions, are the only heirs at law of the said Jesse J. Robinson, except L. J. and J. C. Robinson, under whom defendants claim title; the said L. J. and J. C. Robinson being both nephews of said Jesse J. Robinson, deceased.”

The above testimony of said A. J. Harris was taken in connection with the proof on file, that said Lydia New, Mary Marbut, Charlotte Woods, and Narcissa Snow were nieces of said Jesse J. Robinson, deceased, and that they were dead; and that Sarah Miner, Jesse J. Northcutt, Toliver Webb, mentioned in said testimony, were proven to be heirs of said Jesse J. Robinson, deceased; and that it had been proven that said A. J. Harris was an heir of said Jesse J. Robinson.

The testimony of said A. J. Harris, as stated above, was objected to by counsel for defendants, on the ground that it was hearsay, and not competent to prove the heirship of the children of the said parties; which objection being overruled, they excepted and took their bill of exceptions.

4. That defendants had in their possession, and read in evidence, the original patent for the land in controversy, and the original title papers thereto to Jesse J. Robinson.

5. That the following application was made to and decree in probate was rendered by the District Court of Sabine county, and were read in evidence by defendant:

“In the estate of Jesse J. Robinson, deceased. Application of L. J. and J. C. Robinson for estate to be delivered to them.

Filed April 9, 1873.

JOHN J. GOODRICH, C. D. C.,

Sabine County, Texas.

In the estate of Jesse J. Robinson, deceased:

+-------------------------------------------------------------+
                ¦STATE OF TEXAS,    ¦)¦                                       ¦
                +-------------------+-+---------------------------------------¦
                ¦                   ¦)¦District Court, April Term, A. D. 1878.¦
                +-------------------+-+---------------------------------------¦
                ¦County of Sabine.  ¦)¦                                       ¦
                +-------------------------------------------------------------+
                

To the honorable District Court of said county: Your petitioner, L. J. Robinson, a resident citizen of Cherokee county, in said State, and J. C. Robinson, who resides in Jasper county, in the State of Georgia, with respect, allege and show unto your honor, that they are the nephews and only heirs of Jesse J. Robinson, deceased, and as such are entitled to receive the property and effects of said estate; that letters testamentary upon said estate were originally granted by the County Court of said Sabine county on, to wit, the ____ day of ____, A. D. 1862, and that all the claims established and exhibited against said estate have been paid, and that no claims or debts against the same are known to exist. Petitioners therefore pray that the said estate may be delivered to them, and for such orders and decrees in and about the premises as may be necessary and proper, and as to your honor may seem meet; and as in duty bound, etc.

W. W. WEATHEROUD,

L. HOWELL,

For Petitioners.

District Court, April Term, A. D. 1873. Sabine county, April 9, 1873.

Estate of Jesse J. Robinson, deceased. The application of L. J. Robinson and J. C. Robinson, praying said estate to be delivered to them, coming on to be heard, and it appearing to the court that the said applicants are heirs and only heirs of said deceased, and the said applicants are entitled to receive said estate, it is therefore ordered by the court that the real property of said estate be, and is hereby, delivered to the said applicants, and that the said administrator of said estate deliver to said applicants all the personal property and effects of said estate, upon their proper receipts or vouchers; therefore it is further ordered that the administrator retain in his hands sufficient amount of the money on hand to pay court fees and all expenses of administration which remain unpaid.”

6. That above decree had been...