Marshburn v. Stewart
| Citation | 295 S.W. 679 |
| Decision Date | 22 April 1927 |
| Docket Number | (No. 1334.) |
| Parties | MARSHBURN et al. v. STEWART et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Tyler County; J. M. Combs, Judge.
Suit by L. H. Marshburn and others against Sidney Stewart and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
O. S. Parker and W. D. Gordon, both of Beaumont, Thos. B. Coe, of Kountze, and Jas. E. Wheat, of Woodville, for appellants.
Kennerly, Williams, Lee & Hill, of Houston, Orgain & Carroll, of Beaumont, and Coleman & Lowe and J. A. Mooney, all of Woodville, for appellees.
This is a suit in trespass to try title, involving, as originally instituted, an undivided interest of 3,877 acres in the George T. W. Collins league in Tyler county, Tex. On a former appeal reversing and remanding in part a judgment in favor of these appellants for an undivided 78 per cent. of the land in controversy, their recovery was reduced to 1,816 acres, and the case remanded for a new trial as to the remaining 2,057 acres. See Stewart v. Marshburn, 240 S. W. 331, opinion by this court; Marshburn v. Stewart, 113 Tex. 507, 254 S. W. 942, by Commission of Appeals; 256 S. W. 575, by Commission of Appeals; 113 Tex. 507, 260 S. W. 565, by Supreme Court.
On the former appeal only the issue of good faith of these appellants in purchasing the 78 per cent. claimed by them was involved. But upon the trial from which this appeal was prosecuted appellees defended, not only on the issue of want of good faith in appellants in acquiring their title, but also pleaded against them the issues of three and ten years' limitation. The jury found that appellants acquired their title in bad faith, and also found against them on the two issues of limitation.
The title to the 3,873 acres involved in this litigation is an undivided interest of the George T. W. Collins league in Tyler county, Tex., originally granted to Collins, transferred by him to Warren, and by Warren to Cyrus S. Aiken, by deed dated the 10th day of January, 1842, during his marriage with Mrs. Mildred S. Aiken. Neither Cyrus S. Aiken nor his wife had any children. He died January 10, 1843, leaving neither father nor mother surviving him, but left as his heirs his brothers, William A. Aiken, John G. Aiken, James L. G. Aiken, and his sister, Jane Love Aiken. James L. G. Aiken died in the early part of September, 1847, without issue, and his interest in the estate of his deceased brother, Cyrus S. Aiken, descended to, and vested in, his surviving brothers, William A. Aiken and John G. Aiken, and his sister, Jane Love Aiken. It was determined on the former appeal that the brothers and sister of Cyrus S. Aiken inherited under him the true legal and equitable title to all the property in controversy, but it was also determined that under the laws of Texas the apparent legal title to this property descended to Mildred S. Aiken upon the death of her husband, and finally, under heirship from her, this apparent title descended to, and became vested in, four of her collateral kindred in equal moieties. One of such heirs, a sister, was the wife of William A. Aiken, one of the brothers of Cyrus S. Aiken. It was agreed that appellants owned 78 per cent. of the apparent title under the heirs of Mildred S. Aiken, and the appellee Houston Oil Company owned 22 per cent. of that title. The agreement also set out the percentage of the true title under Cyrus S. Aiken, owned by the parties. It was under this agreement that appellants recovered 1,816 acres on the former trial under the true title acquired by them from the heirs of Cyrus S. Aiken. On the former appeal L. H. Marshburn was the plaintiff upon the trial of the case, and the appellee in the appeal from that judgment. Upon this trial the real plaintiffs, to wit, W. D. Gordon, O. S. Parker, and J. B. Hooks, made themselves parties plaintiff.
Appellants duly excepted to the submission of the issues of three and ten years' limitation, and now assign errors against their submission and the jury's answers thereto as being without evidence to support them. These issues were submitted to and answered by the jury as follows:
The jury answered this question "Yes."
The jury answered this question "Yes."
These issues must have their support in the following evidence:
John G. Aiken, a brother of Cyrus S. Aiken, deceased, on the 22d of April, 1844, appointed C. H. Taylor his agent and attorney to transact business matters in the Republic of Texas, and especially "to attend to all of my land claims in said Republic, * * * and to do every act * * * as he may deem necessary, proper, or expedient in assuring to me or my benefit good and sufficient legal titles to the lands aforesaid," making Taylor his general agent and attorney. Said C. H. Taylor, on January 29, 1861, wrote a letter to Captain James G. Collier, the material portions of which we quote:
James G. Collier, on October 4, 1875, wrote a letter to said C. H. Taylor, the relevant portions of which we quote:
Dr. George W. Collier, a son of said James G. Collier, testified that in 1869 his father, as the agent of the owners, placed one William Ramer on the Collins league as the tenant of the owners; that Ramer had the entire league under his control, to supervise, use, and look after, to keep trespassers off, and to cultivate and enjoy the same. His testimony was positive and to the effect that Ramer lived on this land continuously from 1869 or 1870 to 1881, and sufficient to raise the issue that he continued living on the land continuously, holding it as a tenant for the owners until 1884. He said that Ramer frequently talked to him about his occupancy, saying that he held the land under James G. Collier, as tenant for the owners, and that he expected to receive a deed for a portion of the land in satisfaction of his contract of tenancy. Without quoting further from the evidence on the length of time Ramer lived on this league, it is sufficient to say that it raised the issue that he occupied it continuously for 13 or 14 years as a tenant for the owners, living near the north boundary line of the league. Dr. Collier also testified that his father placed one Allen Hooks on the league near the south boundary line in 1871 or 1872; that Hooks held the land as a tenant for the owners under his father from 1871 or 1872 until 1884. This witness testified that his father made deeds to Hooks and to Ramer to parts of the Collins league. The deed to Ramer, dated September 21, 1881, and recorded November 25, 1882, contained the following recitals:
To continue reading
Request your trial
-
Taylor v. Higgins Oil & Fuel Co.
...was modified by the additional call for the west boundary line. A further discussion of this subject will be found in Marshburn v. Stewart (Tex. Civ. App.) 295 S. W. 679. This brings us to the third proposition upon which the Houston Production Company asks us to affirm the judgment of the ......
-
Binning v. Miller, Water Division Superintendent
... ... character? The matter is one of doubt. It is held in ... Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S.W ... 1027, and Marshburn v. Stewart (Tex. Civ. App.) 295 ... S.W. 679, that the fiduciary relation of cotenants cannot ... arise when the title which they hold is not ... ...
-
St. Louis Royalty Co. v. Continental Oil Co., 13525.
...Inc., v. Suburban, Agricultural Properties, 5 Cir., 150 F.2d 363. 6 Vernon's Texas Civil Statutes, arts. 5509, 5512; Marshburn v. Stewart, Tex. Civ.App., 295 S.W. 679, 687; Choice v. Texas Co., D.C., 2 F.Supp. 160, 161; Terry v. Prairie Oil & Gas Co., 5 Cir., 83 F.2d 843; Kilpatrick v. Gulf......
-
Counce v. Yount-Lee Oil Co.
...Nat. Bk. of Alvarado v. Lane (Tex.Civ.App.) 265 S.W. 763; Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483; Marshburn v. Stewart (Tex. Civ.App.) 295 S.W. 679; Grigsby v. Peak, 57 Tex. 142, Because under the imperative character of this principle appellants have no right of action, ......