Marlin v. Kosmyroski

• Court: Texas Court of Appeals
• Writing for the Court: Key
• Citation: Marlin v. Kosmyroski, 27 S.W. 1042 (Tex. App. 1894)
• Decision Date: 31 October 1894
• Parties: MARLIN v. KOSMYROSKI et al.

27 S.W. 1042

MARLIN v. KOSMYROSKI et al.

Court of Civil Appeals of Texas.

October 31, 1894.

Appeal from district court, Falls county; L. W. Goodrich, Judge.

Action by James M. Marlin and others against Annie Kosmyroski and others, in trespass, and for a partition of certain property. Judgment of partition rendered. Plaintiff James M. Marlin appeals. Reversed and remanded.

Rice & Bartlett, for appellant. J. A. Martin, for appellees.

KEY, J.

Appellant, James M. Marlin, and Charles and Sallie Ann Blackwell, brought this suit in trespass to try title to and for partition of 150 acres of land out of the Easton survey in Falls county. All the parties claim the land through a title obtained under a contract made by William Bowen with the owner of the Easton survey in 1853, which contract was performed by said William Bowen and his surviving wife, he having died in 1861. By the terms of the contract, Bowen was to take possession of the Easton survey of land, make improvements thereon, and hold possession under the owner thereof for a period of 10 years, in consideration of which he was to have 200 acres thereof, which 200 acres includes the land in controversy. His possession began in 1853; and, though he died in 1861 (before the contract was entirely performed on his part), his surviving wife and their children remained in possession for a much longer period than required by the contract. Under this state of facts, appellees contend, by cross assignment of error, that the title to the land acquired under said contract was in Mrs. Bowen; in other words, that it was her separate property, and not community property, and that the children of William Bowen inherited no interest therein from their father. With this contention we do not agree. Under the facts stated, we think the land was community property, and that the children of William Bowen inherited a half interest therein from their deceased father. William Bowen left his wife, Susan Ann Bowen, and six children, surviving him, namely, Milton Bowen, William P. Bowen, Elliot Bowen, Daniel C. Bowen, Sarah Ann Bowen, and an unnamed babe, that died shortly after the death of William Bowen. The testimony warrants the conclusion that Daniel C. Bowen is dead; that he was never married, and had no children. Milton Bowen married and died, leaving a surviving wife, who is the plaintiff Sallie Ann Blackwell, and two surviving children, R. L. and W. D. Bowen. Appellant, Marlin, offered in evidence a general warranty deed to himself, dated July 2, 1890, and executed by J. R. Ellis and wife, S. A. Ellis (formerly Sarah Ann Bowen), and Susan Ann Bowen, acting for herself and as agent for William P. Bowen, conveying the land in controversy; also a power of attorney from William P. Bowen to Susan Ann Bowen, dated November 22, 1892, authorizing her to sell all the lands belonging to said William P. Bowen in Falls county, Tex.; also a deed of ratification executed by said William P. Bowen, dated January 19, 1891, ratifying the deed made in his behalf by Mrs. Susan Ann Bowen, July 2, 1890. Marlin also introduced in evidence a general warranty deed from W. D. Bowen and R. L. Bowen to himself, dated October 7, 1890, conveying an undivided one-fifth interest in the land in controversy. Appellees, who were defendants in the court below, claim the land under a bond for title made to John Kosmyroski, dated October 30, 1882, and executed by Elliot Bowen, for himself and as agent for Mrs. Susan Ann Bowen, Mrs. S. A. Ellis, and William P. Bowen, and as guardian of W. D. and R. L. Bowen. No order of the probate court or other authority was produced authorizing Elliot Bowen to sell the land as such guardian; and the plaintiffs denied that he had authority from Mrs. Susan Ann Bowen, Mrs. Ellis, and William P. Bowen to sell their interests. Whether or not such authority existed was submitted as a special issue to the jury, and the finding was that Elliot Bowen had such authority from Mrs. Susan Ann Bowen and William P. Bowen. The jury also found that the value of the land without...