McAllen v. Raphael

• Decision Date: 12 September 1895
• Parties: McALLEN et al. v. RAPHAEL et al.
• Court: Texas Court of Appeals

Page 449

32 S.W. 449

McALLEN et al. v. RAPHAEL et al.

Court of Civil Appeals of Texas.

September 12, 1895.

Appeal from district court, Cameron county; John C. Russell, Judge.

Trespass to try title by Salome McAllen and others against G. M. Raphael and others. From a judgment sustaining exceptions to the petition and dismissing the suit, plaintiffs appeal. Reversed.

A. J. Evans, for appellants. James B. Wells and McCampbells & Welch, for appellees.

WILLIAMS, J.

This is an appeal from a judgment of the district court sustaining exceptions to plaintiffs' petition and dismissing their suit. The petition contained all of the allegations essential to an action of trespass to try title, and, in addition thereto, set forth specially the character of the title to the land asserted to be in plaintiffs, as well as the nature of the invasion of their right, committed by defendants; and the question presented is whether or not those allegations showed a title sufficient to authorize judgment in plaintiffs' favor against the defendants. The subject of dispute is an interest in a large tract of land containing something more than 35 leagues, originally granted to Vicente Hinojosa, which interest is claimed by both plaintiffs and defendants under one Mifflin Kennedy. The petition shows that, prior to 1859, Kennedy acquired from two of the heirs of Hinojosa an undivided interest amounting to 12 leagues in the tract of 35 leagues, the other interests remaining in other heirs of Hinojosa or their assigns, and that during that year he executed to John Young, plaintiffs' testator, a deed conveying such interest, thus described: "All his, said Kennedy's, right, title, and interest in and to a certain tract or parcel of land situated and lying in the county of Cameron, and state aforesaid, being part and parcel of a certain tract of land, known and called by the name of `Mestenas,' granted by the proper officer of the crown of Spain in America, the 19th day of April, 1798, to Vicente Hinojosa, bounded on the north by the land known as `Salvador del Tulle' and `San Juan de Carricitos,' on the south by the land known as `La Feria' and `Llano Grande,' on the east by the lands of the Espiritu Santo, and on the west by lands in grant said to be vacant, containing thirty-four leagues of land for larger stock and one league for small stock, eight caballerias, and two hundred and seventy-two thousand square varas; and the part hereby intended to be conveyed is all that portion of the said land granted to Vicente Hinojosa, which is on the eastern side or end of the said tract, adjoining the lands of Espiritu Santo, to contain twelve leagues, with the hereditaments and appurtenances thereunto belonging or in any wise pertaining." The petition avers that at the time this deed was executed Kennedy did not have or claim title to any specific portion of the 35 leagues, but did have such title to an undivided interest of 12 leagues; and it asserts that the effect of the deed was to convey such interest to Young. It further alleges that Young took actual possession of the land sued for after the execution of the deed, and remained in possession until his death, which occurred during the same year; and that plaintiffs, his devisees, thereafter held such actual possession, use, and enjoyment of the land until disturbed by defendants. The claim of defendants is shown to have arisen under a deed made by Mifflin Kennedy on the 3d day of September, 1885, to his son, Thomas Kennedy, conveying, in terms, an undivided interest of 12 leagues in the 35-league tract, and a subsequent conveyance made by Thomas Kennedy of the same interest to defendants. Under this claim it is averred that defendants en...