McBurney v. Knox

• Decision Date: 24 June 1925
• Docket Number: (No. 667-4178.)
• Citation: 273 S.W. 819
• Parties: McBURNEY et al. v. KNOX.
• Court: Texas Supreme Court

273 S.W. 819

McBURNEY et al. v. KNOX.

(No. 667-4178.)

Commission of Appeals of Texas, Section A.

June 24, 1925.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Trespass to try title by Nora Walker McBurney and others against Hiram Knox. Judgment for defendant was affirmed by the Court of Civil Appeals (259 S. W. 667), and plaintiffs bring error. Affirmed.

W. D. Gordon, of Beaumont, and Jno. W. Minton, of Hemphill, for plaintiffs in error.

Chester B. Collins, of Lufkin, for defendant in error.

GERMAN, P. J.

This case has been once before the Supreme Court. At that time it was reversed and remanded for another trial. 111 Tex. 510, 241 S. W. 1000.

The land in controversy is an undivided interest of 177 acres in 354½ acres of the William Isaacks survey in Sabine county, Tex. The title to this 354½ acres was formerly in William A. Donaho and wife, Harriett A. Donaho. William A. Donaho died, leaving one child, T. J. Donaho. By a general warranty deed dated March 15, 1871, T. J. Donaho conveyed to R. J. Jennings the entire 354½ acres. At that time Harriett A. Donaho was married to R. J. Jennings, to whom T. J. Donaho made his deed. On May 10, 1871, by indorsement on the deed from T. J. Donaho to R. J. Jennings, Mrs. Jennings undertook to convey her interest in this land to her husband. There was no joinder of her husband in the conveyance, and the acknowledgment was also defective; so this attempted conveyance was null and void. Graham v. Stuve, 76 Tex. 533, 13 S. W. 381. By general warranty deed of date May 10, 1871, for a recited consideration of $450, R. J. Jennings and wife, Harriett A. Jennings, undertook to convey this 354½ acres of land to John H. Derrough. It was found by the trial court, and is in effect admitted by all parties, that the certificate of acknowledgment to this deed as to Mrs. Jennings is so defective as to make the deed void, so far as she is concerned. This being true, there passed to Derrough only an undivided one-half interest in this 354½ acres, the other one-half interest remaining in Harriett A. Jennings.

The trial court found as a fact that Harriett A. Jennings died prior to her son T. J. Donaho, leaving the said T. J. Donaho as one of her heirs and two children by R. J. Jennings as her other heirs. Under this finding the court concluded as a matter of law, and rightly so, that T. J. Donaho inherited from his mother, Harriett A. Jennings, an undivided one-third interest in her one-half of this land; and that by reason of his general warranty deed to R. J. Jennings conveying the entire 354½ acres this one-sixth interest passed to Jennings and those holding under him. This finding of the court has not in any way been brought into question, and we therefore hold that this one-sixth undivided interest is vested in defendant in error herein, Hiram Knox.

Nora Walker McBurney and others, who brought this suit as plaintiffs, are heirs of Harriett A. Jennings, and according to the findings made by the trial court were entitled by inheritance to the remaining two-thirds of her one-half interest. However, there is a special finding that on April 28, 1902, these plaintiffs gave to one D. B. Chapin a power of attorney, coupled with a one-half interest, and that there was such performance of services contracted for that Chapin became vested with title to one-half of the interest of these parties, which amounted to an interest of one-sixth in the whole tract. There is a further finding that this one-sixth interest was recovered by W. D. Gordon in a suit against D. B. Chapin, and that this interest is outstanding in said Gordon. It appears that for this reason, as well as because of the limitation plea of defendant in error, plaintiffs were denied a recovery as to this one-sixth interest.

This finding and conclusion by the trial court has not been in any manner attacked or appealed from, and we therefore hold that the judgment of the trial court, so far as denying plaintiffs a recovery as to this interest, on account of outstanding title, is correct. As we shall also see, as to plaintiffs we think the plea of limitations was good and should be sustained as to the entire one-half interest. We will briefly discuss that question, but the findings of fact made by the trial court, which have not been attacked and which appear to be supported by the evidence, in the light of the well-established law of this state, settle the question without the necessity of discussion.

Among other things, the trial court found that during the month of February, 1895, J. H. Derrough contracted with W. H. Garlington to take possession of the entire 354½ acres of land, of which the land in controversy is an undivided part; that during said month Garlington, as the tenant of Derrough, entered upon and took possession of the whole 354½ acres, and began opening up a field thereon; that a part of same was put in cultivation, and the field was enlarged, until by the year 1897 the field...