KIRBY LUMBER CORPORATION v. Williams
| Decision Date | 30 September 1954 |
| Docket Number | Civ. No. 2433. |
| Citation | 124 F. Supp. 456 |
| Court | U.S. District Court — Eastern District of Texas |
| Parties | KIRBY LUMBER CORPORATION, Plaintiff, v. John W. WILLIAMS, Newton A. Williams, V. C. Williams, Stephen Williams, Lula Williams Good, Emma Squires and husband, C. L. Squires, Defendants. |
Claude C. Roberts, of Fountain, Cox & Gaines, Houston, Tex., Lewis Lanier, Jasper, Tex., J. B. Forse, Sr., Newton, Tex., for plaintiff.
Pitser H. Garrison, James R. Cornelius, Jr., Collins, Garrison, Renfrow & Zeleskey, Lufkin, Tex., for defendants.
This is an action of trespass to try title brought and maintained in accordance with the laws of Texas pertaining to such actions. Article 7364 et seq., Vernon's Annotated Civil Statutes of Texas and Rule 783 et seq., Texas Rules of Civil Procedure. The plaintiff is a corporation organized and existing under and by virtue of the laws of the State of Delaware and has a permit to do business in the State of Texas. The defendants, and each of them, reside in the State of Texas. The value of plaintiff's alleged interest in the land in controversy exceeds the sum of $3,000, exclusive of interest and costs. Therefore, this court has jurisdiction over the parties hereto and of the subject matter hereof.
The plaintiff alleges that it is the owner of a 69/100 undivided interest in and to a one-hundred acre tract of land located in the Stephen Williams Survey in Jasper County, Texas, which tract of land is described by metes and bounds in plaintiff's complaint herein and which is the same tract of land conveyed to R. J. Williams by W. W. McBryde by deed dated September 1, 1881 and which deed is recorded in Vol. P., p. 163, Deed Records of Jasper County, Texas. Plaintiff, in addition to seeking to recover title to and possession of its alleged interest in the land in question, seeks to recover the value of certain timber it alleges defendants wrongfully and unlawfully cut and removed from said land and sought a temporary restraining order enjoining the Defendants, and each of them, from entering upon said land and cutting and removing any timber therefrom, prayed that upon hearing preliminary injunction issue enjoining the Defendants from entering upon and cutting and removing timber from said land and that upon final hearing a permanent injunction to that effect issue. The temporary restraining order as prayed for was granted on July 30, 1953 and August 5, 1953 an order was entered granting a preliminary injunction enjoining the Defendants, and each of them, from trespassing upon the land in question and from cutting and removing any timber therefrom during the pendency of this suit. In addition to claiming the record title to its alleged interest in the land in controversy, the Plaintiff alleged title to its alleged interest in the land by virtue of the three, five, ten and twenty-five year statutes of limitation of the State of Texas, Vernon's Ann.Civ.St. arts. 5507, 5509, 5510, 5519. However, on the trial of the case the Plaintiff abandoned any claim of title by virtue of the statutes of limitation and relied solely on its claim of record title.
The Defendants in their answer filed a plea of not guilty as authorized by Rule 788, T.R.C.P. and further affirmatively alleged that they are the owners of an undivided interest in the tract of land in controversy and because thereof were entitled to go upon the land and cut and remove therefrom the timber that they did cut and remove therefrom.
The parties stipulated that the common source of title under which both the Plaintiff and the Defendants claim title to the land in controversy was one W. W. McBryde and further stipulated that the Plaintiff had acquired and now owns all of the right, title and interest, if any, that was ever acquired and owned by Kirby Lumber Company, a corporation.
Plaintiff's claim of record title is based on the following instruments, each of which is duly recorded in the Deed Records of Jasper County, Texas, and the recording date stated in connection with each instrument hereinafter listed refers to the time the particular instrument was filed for record in the office of the County Clerk of Jasper County, Texas: warranty deed from W. W. McBryde to R. J. Williams, dated September 1, 1881, conveying the tract of land in controversy — recorded June 22, 1888; deed of trust from R. J. Williams to W. W. Blake, Trustee for Jasper Mercantile Co., a corporation, conveying the tract of land in question to secure an indebtedness of $1,294.19 owed by R. J. Williams to Jasper Mercantile Co. as evidenced by three promissory notes executed by R. J. Williams under date of April 4, 1904, the first note being in the sum of $500, with interest at 8% per annum and being due 90 days after date of the note, the second note being in the sum of $500, with interest at the rate of 8% per annum and being due 180 days after the date of the note and the third note being in the sum of $294.19, with interest at the rate of 8% per annum and being due on February 1, 1905 recorded November 29, 1904; deed from J. M. Brown, Sheriff of Jasper County, Texas, to the First National Bank of Jasper, dated March 3, 1908, purporting to convey the entire tract of land in question recorded May 11, 1908; deed from The First National Bank of Jasper to Mrs. Cleona Trotti, dated August 7, 1909, and by the terms of which the bank "sold, released and quitclaimed, and by these presents does sell, release and quitclaim, unto the said Mrs. Cleona Trotti, of the County of Jasper, and State of Texas, all its right, title, interest and claim, of, in and to the following described property" (then followed a description of the tract of land in controversy) recorded December 8, 1911; warranty deed from W. E. Trotti and wife, Cleona Trotti, to L. W. Curry, dated February 12, 1912, conveying the tract of land in question recorded February 13, 1912; special warranty deed retaining vendor's lien on the land conveyed therein in favor of the vendor to secure payment of a promissory note in the amount of $175 given by the vendee as a consideration for the deed from W. E. Trotti to R. T. Williams, dated November 13, 1915, conveying the land in controversy recorded November 13, 1915; special warranty deed from R. T. Williams and wife, S. A. Williams, to Kirby Lumber Company, a corporation, Flaxman Dry Goods and Notions Co., Graham Hat Co., Houston Packing Co., Phelin-Josey Grocery Co. and E. L. Wilson Hardware Co., dated October 30, 1916, conveying to Kirby Lumber Co. an undivided 47213/120276 interest in the land in controversy, to Flaxman Dry Goods and Notions Co. an undivided 35710/120276 interest in the land in controversy and to the remainder of the grantees in said deed the remainder of the tract in varying undivided interests recorded November 13, 1916; quitclaim deed from L. W. Curry to R. T. Williams, dated March 25, 1918, quitclaiming unto the said R. T. Williams all of the right, title and interest of the said L. W. Curry in and to the tract of land in controversy recorded April 2, 1918; and warranty deed from Flaxman Dry Goods and Notions Co. to Kirby Lumber Co., dated July 6, 1918, conveying an undivided 35710/120276 interest in the tract of land in controversy recorded July 12, 1918.
R. J. Williams, the grantee in the deed from W. W. McBryde to R. J. Williams, dated September 1, 1881 and above referred to, was married twice and only twice. He was first married to Emma Barrow Williams. To this marriage the following children were born: R. T. Williams, Alphonse or J. A. Williams, Stephen Williams, Annie Williams, Lula Williams, now Lula Williams Good and twins, who died in infancy before the death of Emma Barrow Williams. Emma Barrow Williams died intestate in 1888. There was no administration on her estate and there was no necessity therefor. Annie Williams died in September, 1890 without ever having married and there was no administration on her estate and no necessity therefor. Alphonse or J. A. Williams died in 1918 without ever having married. There was no administration on his estate and there was no necessity therefor. R. T. Williams, Stephen Williams and Lula Williams Good are still living.
On February 9, 1890 R. J. Williams married Susie Self. To this marriage the following children were born: Emma Williams, now Emma Squires, John W. Williams, Newton A. Williams, Fred or Lafayette Williams and V. C. Williams. Fred or Lafayette Williams died intestate in 1941 and left surviving him his wife, Beulah Williams and his two daughters, Freddy Jean White and Dorothy Williams Primo. There was no administration on the estate of Fred Williams and there was no necessity therefor.
R. J. Williams died intestate on July 18, 1907. There was no administration on his estate and there was no necessity therefor.
On the date R. J. Williams executed the deed of trust to W. W. Blake as trustee for Jasper Mercantile Co., a corporation, above referred to, and the notes for which said deed of trust was given as security, W. E. Trotti and A. L. Dunkin were officers of the Jasper Mercantile Co. and each of them was well acquainted with R. J. Williams and his family and each of them knew of the death of Emma Barrow Williams and that the children above listed as the children of R. J. Williams and Emma Barrow Williams survived the said Emma Barrow Williams.
On or about August 21, 1950 the Jasper Mercantile Co. pledged to and deposited with The First National Bank of Jasper as collateral to secure a certain indebtedness of the Jasper Mercantile Co. to The First National Bank of Jasper the three notes aggregating the sum of $1,294.19 executed by R. J. Williams on April 4, 1904 and above referred to, which last mentioned notes will hereinafter be referred to as the "Williams notes." R. J. Williams never paid any of the indebtedness evidenced by said Williams notes.
On January 10, 1907 The First National Bank of Jasper instituted a suit in the...
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KIRBY LUMBER CORPORATION v. Williams
...the notes from the company, at least some of the notes were past due. The judgment was right and it is affirmed. 1 Kirby Lumber Corp. v. Williams, D.C., 124 F.Supp. 456, 462. 2 The district judge thus setting out the contention of the plaintiff, that the bank, under whose foreclosure it cla......