McDonough v. Jefferson County

• Court: Texas Supreme Court
• Writing for the Court: Henry
• Citation: McDonough v. Jefferson County, 15 S.W. 490 (Tex. 1891)
• Decision Date: 10 February 1891
• Parties: McDONOUGH <I>et al.</I> v. JEFFERSON COUNTY <I>et al.</I>

15 S.W. 490

McDONOUGH et al. v. JEFFERSON COUNTY et al.

Supreme Court of Texas.

February 10, 1891.

Appeal from district court, Jefferson county.

Greer & Greer, for appellants. O'Brien & O'Brien, for appellee Vestal. Tom J. Russell, for appellees Lewis and Kirkland.

HENRY, J.

This was an action of trespass to try title. The plaintiffs are the heirs of Adalissa McDonough, who was the wife of B. F. McDonough, and died in 1886, while under coverture. The land was sold under execution in the year 1868, as the property of Cave Johnson, and the sheriff's deed was made to J. W. McDonough, who conveyed it, in 1881, to Adalissa McDonough. B F. McDonough claimed to have been the real purchaser at the sheriff's sale, and that he paid the purchase money. In 1870, B. F. McDonough conveyed the land to William Allison by a deed that only described the land by a reference to the sheriff's deed, which contained a full description of it, but which was not recorded until 1881. The deed to Allison was recorded in 1875. William Allison conveyed the land to Daniel Lewis by a deed containing a full description of the land, which was duly recorded in the month of October, 1875. Plaintiffs had judgment against Jefferson county. The other defendants held under the deed to Daniel Lewis, and pleaded the five-years statute of limitations. They proved possession and payment of taxes for five consecutive years, and judgment was rendered in their favor. Appellants assign the following error: "The plaintiffs having shown title in their mother as to her separate property, from the sovereignty of the soil, and then having proved their heirship from their said mother, Adalissa McDonough, the court erred in permitting defendants to read in evidence a certain deed from B. F. McDonough,—plaintiffs' father,—in which their said mother did not join, dated May 18, 1870, the error consisting in this: (1) Said deed reciting on its face the grantor purchased the land at sheriff's sale, as the property of Cave Johnson, and referring to the sheriff's deed for description of the land, such recitals charged defendants with the duty of investigating such sheriff's sale, and their claim under said deed is inconsistent with good faith in their subsequent purchase thereof; and (2) said deed gave no metes and bounds, and otherwise failed to identify the land so as to make it a deed therefor duly registered, as required by the statute of limitations of five years. And the court further erred in...