Lindsay v. Freeman

• Decision Date: 09 February 1892
• Citation: 18 S.W. 727
• Parties: LINDSAY v. FREEMAN <I>et al.</I>
• Court: Texas Supreme Court

18 S.W. 727

LINDSAY v. FREEMAN et al.

Supreme Court of Texas.

February 9, 1892.

Commissioners' decision. Section B. Appeal from district court, Cooke county.

Action by M. E. and D. C. Freeman against J. M. Lindsay. From a judgment for plaintiffs, defendant appeals. Affirmed.

Davis & Harris, for appellant. Brown & Bliss, for appellees.

TARLTON, J.

This was an action of trespass to try title, brought in the district court of Cooke county, March 15, 1887, by Mary E. Freeman and D. C. Freeman, against J. M. Lindsay, to recover, in the right of said Mary E. Freeman, a survey of 320 acres near Gainesville, patented to the heirs of E. J. W. Lowery. The defendant answered by plea of not guilty, and the statute of limitation of 3, 5, and 10 years. At the November term, 1887, the cause was submitted to the Honorable F. E. PINER, district judge, and, he failing to render a decision at that term, a statement of facts was made out, approved, and filed, and the case taken under advisement. Afterwards, on the 2d day of July, 1889, a decision upon said statement of facts was reached by the Honorable D. E. BARRETT, the succeeding district judge, and judgment rendered in favor of the plaintiffs for the entire survey, from which defendant Lindsay has prosecuted this appeal.

The conclusions of law and fact found by the court are as follows:

"First. As to matters of fact, I find that the land in controversy was patented on the 4th day of October, 1871, to the heirs of E. J. W. Lowery, deceased, by virtue of certificate for 1,476 acres, issued October 15, 1856, by S. Crosby, commissioner of the general land-office, and that the said E. J. W. Lowery died about the year 1837 without wife or issue, and leaving, surviving him, as his sole heirs, his mother, Flora Lowery, and his five sisters, viz., Elizabeth C. Ingles, Mary L. Lowery, Rebecca G. Lowery, Hulda C. Lowery, and Basilla Lowery. Second. That plaintiff M. E. Freeman, wife of plaintiff D. C. Freeman, has a regular chain of transfer to the land in controversy from the said Elizabeth C. Ingles, Mary L. Lowery, Rebecca G. Lowery, Hulda C. Lowery, and Basilla Lowery, and that the said Flora Lowery was dead before the execution of the deed to said land by the said Mary L. Lowery, Rebecca G. Lowery, Hulda C. Lowery, Basilla Lowery, Elizabeth C. Ingles, and her children. Third. That on the 14th day of August, 1860, when the said Mary L. Lowery, Rebecca G. Lowery, and Basilla Lowery executed to Benjamin F. Graves the deeds to said land, they were capable of making a deed to real estate; and, while of an inferior grade of intellect, they had sufficient mind and understanding to bind themselves by contract. Fourth. That the land in controversy was conveyed to plaintiff Mary E. Freeman (then Mary E. Robinson) by the plaintiff D. C. Freeman on the 5th day of March, 1869, and that afterwards, during the year 1869, the plaintiffs were married, and have ever since been husband and wife. Fifth. That in the month of November, 1882, (the said Mary L. Lowery having previously died) in the Fayette circuit court, in the state of Kentucky, the said Rebecca G. Lowery, Hulda C. Lowery, and Basilla Maloney, (formerly Basilla Lowery,) were adjudged to be insane and incapable of transacting business, and that afterwards the said Rebecca G. Lowery, Hulda C. Lowery, and Basilla Maloney, acting through their legal representative, appointed by said Fayette circuit court, instituted suit against defendant, J. M. Lindsay, for said land, in the district court of Cooke county, Tex., said Lindsay having been in possession of said land under a tax title since the 19th of May, 1882; and on the 9th day of February, 1883, an agreed judgment was rendered in said suit, whereby this defendant, Lindsay, recovered all the interest of said plaintiffs in said land. Sixth. Finding, as I do, that the said Mary L. Lowery, Rebecca G. Lowery, Hulda C. Lowery, and Basilla Lowery, (Maloney,) had sufficient mental capacity when they executed the deed to Benjamin F. Graves, on the 14th day of August, 1860, to convey real estate, I hold that by said deed they parted with all their interest in the land in controversy, and, having no further interest in the same, the defendant acquired no right to the said land, as against the plaintiffs, by said agreed judgment; and, so believing, I render judgment for the plaintiff."

The appellees' claim rests mainly upon the deed referred to in the court's third conclusion, viz., the deed from the sisters, therein named, of E. J. W. Lowery, to Benjamin F. Graves, dated August 14, 1860. The appellant's title, without reference to his claim of limitations, is founded upon the judgment set out in the court's fifth conclusion, the judgment rendered February 9, 1883, by the district court of Cooke county, in favor of appellant against Rebecca G. Lowery, Hulda C. Lowery, and Basilla Maloney, (formerly Basilla Lowery.) In his first and second assignments of error, appellant complains, in effect, that the court erred in finding, as matter of law, that the sisters were heirs of E. J. W. Lowery, and were thus capable of conveying to Graves at the date of their deed to him, August 14, 1860, and in concluding as matter of fact, that the mother, Flora Lowery, was dead at the date of the conveyance. It is, in our opinion, true, as urged by appellant, that in this case, as the certificate issued October 15, 1856, to the heirs of E. J. W. Lowery, by virtue of an act passed September 1, 1856, the question of inheritance must be determined by the law in force at the date of the death of E. J. W. Lowery. Goodrich v. O'Connor, 52 Tex. 375. It is further true that as Lowery, who had been serving as a soldier in the Texas revolution, died in 1837, when inheritance was regulated according to the provisions of the civil law of Spain and Mexico, his mother, Flora, his sole surviving parent, inherited to the exclusion of his sisters. Prendergast v. Anthony, 11 Tex. 165; Schm. Civil Law, 265. We are also of the opinion that the evidence did not justify the conclusion of the court that Flora Lowery was dead on the 14th day of August, 1860. If it was necessary to prove that the sisters were heirs of their brother at that precise date, it was necessary to show that their mother, who inherited to their exclusion, was dead at that precise date. 2 Greenl. Ev. § 309. The only testimony in the record fixing, even approximately, the date of Flora's death, consists in the statement of the witness Reynolds "that the women, Mary, Rebecca, Hulda, and Basilla, had trustees ever since the death of their mother and father," supplemented by the statement of the witness Gibbons that "he was appointed trustee for these women about 1860." These statements justify the conclusion that Flora was dead "about 1860," but not that she was dead on August 14, 1860. It was shown that in 1859 the daughters of Flora Lowery joined in a deed of partition of land, whence it is argued that Flora must have been dead at that date, or she would have signed the deed with her daughters. In an action of trespass to try title, the burden of proof resting upon the plaintiff, a court would not be warranted in inferring, in aid of the plaintiff's title, that a certain person was dead at a particular date because at that date such person failed to sign a conveyance with others.

Appellees insist, however, that these errors are immaterial; that if Flora Lowery was not dead at the date of the deed made by Mary, Hulda, Rebecca, and Basilla Lowery, she was nevertheless dead long prior to the judgment of February, 1883, under which appellant claims; that at her death these women inherited as her children; and that the title, if thus subsequently acquired, passed by estoppel through their deed to Graves and to his vendees, the appellees. The evidence of Reynolds and Gibbons shows, as above set out, that Flora Lowery died "about 1860." The depositions of Graves read by appellant speak of her as being dead in March, 1869. There is no doubt of her death prior to the issuance of the patent, October 4, 1871, to the heirs of E. J. W. Lowery, and consequently prior to the judgment of February, 1883, under which appellant claims. The deed of date August 14, 1860, purports "to convey, in consideration of $400 paid, the lands and land certificates granted by the state of Texas to the heirs of E. J. W. Lowery, situated in Bell, Falls, Montague, Cooke, and other counties in Texas, among which the tract of land in controversy is described." It does not appear from the record whether or not the deed contains a covenant of warranty. We apprehend that it does not, and thus treat it. The question then arises, is this conveyance such as to pass by estoppel, against the grantors to the grantee Graves and to his assigns, any title in the land subsequently acquired by the grantors? If such be its effect, the errors complained of will not require a reversal of the judgment. Article 999 of Paschal's Digest, in force when the deed in question was executed, provided that "every estate in lands which shall hereafter be granted, conveyed, or devised to one, although other words heretofore necessary at common law to transfer an estate in fee-simple be not added, shall be deemed a fee-simple, if a less estate be not limited by express words, or do not appear to have been granted, conveyed, or devised by construction or operation of law." Construing, therefore, the instrument in question in the light of this provision, the grantors must be held to have intended to convey to Benjamin F. Graves an estate in fee-simple. A less estate was neither limited by express words, nor appears to have been conveyed by construction or by operation of law. The intention of the grantors to convey an estate in fee-simple thus appears upon the face of the instrument. Bell Co. v. Alexander, 22 Tex. 359. This instrument is not a mere quitclaim or a release or a conveyance of the right, title, and interest...