Maxson v. Jennings

• Decision Date: 09 December 1898
• Citation: 48 S.W. 781
• Court: Texas Court of Appeals
• Parties: MAXSON v. JENNINGS.<SMALL><SUP>1</SUP></SMALL>

48 S.W. 781

MAXSON v. JENNINGS.¹

Court of Civil Appeals of Texas.

December 9, 1898.

Error from district court, Harris county; John G. Tod, Judge.

Trespass to try title by T. R. Jennings against G. H. Maxson. There was a judgment for plaintiff, and defendant brought error. Affirmed.

Allen, Watkins & Jones, for plaintiff in error. Ford, Stone & Ford and Hendricks & Hendricks, for defendant in error.

WILLIAMS, J.

Defendant in error brought this action of trespass to try title to recover the land in controversy, known as "Spillman's Island," in San Jacinto Bay; alleging title generally, as well as by limitation under the three and five years' statutes. The defendant pleaded not guilty, and, specially, that he had title to 160 acres of the land sued for, by 10 years' limitation. The trial was before the judge without a jury, and judgment was rendered for plaintiff.

The original grant from the sovereignty, the validity of which is not questioned, was extended to Henry K. Lewis on the 8th day of November, 1830. From Lewis the plaintiff deraigned title as follows:

(1) Record from the county court of Austin county, showing the appointment of John W. Moore as curator of the estate of Henry K. Lewis, deceased, by a court not mentioned in the statement of facts; his qualification; the filing of inventory and appraisement; petition for order of sale of real and personal property, and report of sale of same. This is certified by the county clerk to be the whole of such record existing in his office. The dates of none of these proceedings are shown by the statement of facts, and it is not claimed that the sale referred to was of the land in controversy.

(2) Copy of an authentic act of sale, of date February 25, 1835, by John W. Moore, as curator of Henry K. Lewis, to James Spillman, conveying the land in controversy; reciting that it is made in compliance with a bond executed by Lewis in his lifetime, and in consideration of the payment to the curator of $160, receipt of which is acknowledged. This instrument also recites sale of other land of the estate, under orders of court, to Spillman, and conveys such other land. It was made before George Ewing, acting judge of first instance, and ex officio notary public in the town and jurisdiction of San Felipe de Austin, with the instrumental and assisting witnesses. It was acknowledged by Moore January 25, 1839, and recorded same day in Harris county.

(3) Proceedings in the administration of James Spillman through which the land was sold and conveyed by the administrator to Archibald Wynne on the 3d day of February, 1841. This deed was recorded July 28, 1852.

(4) Deed from Archibald Wynne to Frances Levenhagen, wife of Henry C. Levenhagen, of date June 9, 1842, recorded June 10, 1842.

(5) Deed from Henry Levenhagen and Frances Levenhagen to Robert Levenhagen, dated November 5, 1842, recorded November 9, 1842.

(6) Deed from Robert Levenhagen to Catherine Bowman, wife of Charles Bowman, for undivided one-third of land in controversy, dated August 29, 1843, recorded September 5, 1843, which deed recites the consideration to be "$400 in hand paid by Catherine Bowman, wife of Charles Bowman," and that the deed is made "with the previous consent of said Charles Bowman," her husband.

(7) The following deed:

"State of Texas, County of Harris. Know all men by these presents, that I, Catherine Bowman, acting with the consent and authority of my husband, Charles Bowman, of the state and county aforesaid, for and in consideration of four hundred dollars to me paid by Charles J. Glaevecke, also of the county aforesaid, have this day granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said Charles J. Glaevecke, all that part or parcel of land lying and being situate on the waters of the San Jacinto, in the state of Texas, the county of Harris, conveyed to me by Robert Levenhagen, since deceased, by deed bearing date the 29th day of August, A. D. 1843, and entered upon Harris County Record of Deeds, Book J, pages 8 and 9, to wit, one undivided third of Spillman's Island, together with one undivided third of all the buildings and other improvements, rights, members, hereditaments, and appurtenances to the same belonging, or in any wise incident or appertaining. To have and to hold, all and singular, the said undivided third of the above-mentioned premises, unto the said Charles J. Glaevecke, his heirs and assigns, forever. And I, the said Catherine Bowman, acting as aforesaid with the consent and authority of my said husband, Charles Bowman, bind myself, my heirs, executors, and administrators, to warrant the premises hereby conveyed, and forever defend the same, all and singular, unto the said Charles J. Glaevecke, his heirs and assigns, against the claim or claims of every person whomsoever lawfully claiming and to claim the same, or any part thereof. In testimony whereof, I sign these presents with my hand, and affix my scroll for seal therein, this 23rd day of March, A. D. 1847, together with my said husband's hand and scroll. Catherine Bowman. [Seal.] Charles Bowman. [Seal.] Signed, sealed, and delivered in presence of Henry Levenhagen.

"The State of Texas, County of Harris. Before me, Henry Levenhagen, the undersigned notary public in aforesaid state and county, duly commissioned and qualified, personally appeared Catherine Bowman, the wife of Charles Bowman, a citizen of the state and county aforesaid, who declares and says that she signed, sealed, and delivered the foregoing instrument of writing as her voluntary act and deed, for the uses and purposes therein stated and set forth; and the said Charles Bowman, having been examined, declares and says that the said Catherine Bowman executed the same with his consent and authority, and he subscribed his name thereto. In testimony whereof, I sign these presents with my hand, and affix my notarial seal thereto. Done at my office, in the city of Houston, the state and county aforesaid, this 26th day of March, A. D. 1847. Notarial Record No. 152. Henry Levenhagen, Notary Public H. C."

This deed was recorded March 10, 1849.

(8) Proceedings in the county court of Harris county in the estate of Robert Levenhagen, deceased, showing the regular appointment of Henry Levenhagen as administrator of such estate; also, that on the 1st day of October, 1847, the following petition was filed in the proceedings:

"State of Texas, Harris County. To the Hon. Wm. F. Weeks, Judge of the Probate Court of Said County: The petition of Charles J. Glaevecke, a resident citizen of said county, respectfully represents that Robert Levenhagen, deceased, whose estate is administered by Henry Levenhagen, administrator in the honbl. court, died possessed of the legal title and estate in and to the undivided two-thirds of a certain parcel of land lying in said county, known as `Spillman's Island,' but that the said undivided two-thirds of said land was the equitable property of this petitioner, and held by the said Robert, not as his own, but in trust to the use of this petitioner, and the said Robert always held himself bound to convey the 2/3 of said parcel of land according to the order and request of said petitioner, but that the said Robert died without having made any conveyance, and that his representative, the said Henry, admr. &c., ought now to make such conveyance, but declines to do so without the permission of this honbl. court. Wherefore he prays that the said administrator be ordered and allowed, after due notice of this petition, to convey the said undivided 2/3 of said parcel of land to this petitioner. And, as in duty bound, will ever pray, &c. A. P. Thompson, Atty. for Petn."

On same day the administrator made to such petition the following answer:

"State of Texas, Harris County. In the Honbl. the Probate Court in and for Said County, at the September Term Thereof, Anno Domini 1847. Estate of Robert Levenhagen. H. Levenhagen, Admr. In this cause comes the administrator, Henry Levenhagen, and for answer to the petition of Charles J. Glaevecke, exhibited relative to the conveyance of 2/3 of Spillman's Island, says that he is well aware that the said property was held by said Robert, deceased, in trust to the use of the said Charles J. Glaevecke, as this admr. and his wife, Frances, made to said Robert conveyance of said land in said trust, and is also aware and admits that said Robert always held himself bound to convey said land according to the request of said Charles, and did not claim any beneficial interest therein, but this administrator believes that he cannot make the conveyance prayed for in said petition without the authority and permission of this honbl. court. This administrator believes that, if said permission be granted, it will save to said Frances the cost of a suit in a court of equity to enforce the same. Henry Levenhagen, Admr. of Robert Levenhagen, Dec'd."

Upon which the following order was made by the probate court: "Application of Charles J. Glaevecke to Compel Admr. to Make Deed. Upon the Application of Charles J. Glaevecke for an Order to the Administrator to Make a Certain Deed of Conveyance. In this case, the petition and answer having been considered, and it appearing to the court from the statements and admissions in said petition and answer duly sworn to, and from the testimony in open court of A. P. Thompson, Joseph A. Harris, and Charles Bowman, that the said Robert Levenhagen, deceased, neither owned nor claimed any beneficial interest in the undivided 2/3 of Spillman's Island, but held the legal title in...