McConnico v. Thompson

• Decision Date: 05 November 1898
• Citation: 47 S.W. 537
• Parties: McCONNICO et al. v. THOMPSON et al.
• Court: Texas Court of Appeals

47 S.W. 537

McCONNICO et al. v. THOMPSON et al.

Court of Civil Appeals of Texas.

November 5, 1898.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by Lavinia McConnico and others against Mrs. J. B. Thompson and others. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

Frost, Neblett & Blanding, for appellants. Robt. G. Johnson, Capps & Cantey, Humphreys & McLean, and W. R. Sawyers, for appellees.

HUNTER, J.

This is an action of trespass to try title, brought by appellants, in the district court of Tarrant county, against appellees, on the 21st day of February, 1896. The defense was not guilty, and the five and ten years' statutes of limitation, and stale demand. The replication was coverture. The court directed a verdict for the defendants, and judgment was rendered accordingly. The land was the community property of Thomas I. Smith and wife, Louise. They acquired it as a locative interest under a land certificate issued to J. M. Shreve. Smith died in 1848, leaving Louise, his widow, and one child, a son, W. T. Smith. The widow married C. M. Winkler, in 1848, and died in November, 1862. The land was patented in October, 1870, to Hamilton, assignee of Shreve, who had previously conveyed the same to the heirs of Thomas I. Smith, to wit, in 1852. Mrs. Winkler left, surviving her, besides her husband, aforesaid, three daughters, Lavinia, Mary, and Kate, issue of her marriage with Winkler. Winkler died in 1882. Lavinia was married to A. D. McConnico in 1870, but the record fails to show in what month or day of the month. Mary was married to S. R. Frost in January, 1872. Both were minors, under the age of 21 years, when they were married, and both are still living with their said husbands. Kate was also married while a minor, in November, 1872; but her husband having died in November, 1875, and she never having married again, appellants admit that she is barred by limitation. The appellees and those under whom they claim title have had and held peaceable, continuous, and adverse possession of the north half of the land since the 1st day of January, 1852, and of the south half since February 8, 1858, using and cultivating the same, and paying all taxes thereon, holding the same under deeds duly registered, and claiming full title thereto against the world.

The first and second assignments of error complain of the court's action in overruling the appellants' demurrers to appellees' plea of stale demand, which we overrule, because the petition did not disclose on its face that the title of the plaintiffs was not an equitable title, such as would be subject to the plea; it being the formal petition usual in our real actions, alleging simply ownership and possession on a day certain, and that on that day the defendants forcibly entered the premises, and ejected the plaintiffs therefrom. The allegation of ownership in such case is sustained by evidence of either a legal or equitable title, but the form of the petition does not indicate to the defendants which kind of title will be relied upon on the trial, and hence it was proper to plead stale demand as well as the statutes of limitation. The plea was in proper form, and therefore said assignments are overruled.

The court below directed a verdict...