Mcginnis v. Ames

• Decision Date: 01 January 1875
• Citation: 44 Tex. 319
• Court: Texas Supreme Court
• Parties: LEWIS & MCGINNIS v. HARRIET A. AMES.

44 Tex. 319

LEWIS & MCGINNIS

v.HARRIET A. AMES.

Supreme Court of Texas.

1875.

APPEAL from Marion. Tried below before the Hon. J. D. McAdoo.

This is an action of trespass to try title, instituted in the District Court of Cass county on the 4th day of July, 1857, by appellants against appellees, to recover three sections of land now in Marion county, a part of the league and labor surveyed and patented to Robert Potter by virtue of his own headright certificate.

The venue was subsequently changed to Harrison county, in the 6th district, by reason of the incompetency of W. S. Todd, judge of the 8th district, to try said cause, and afterwards was changed to Marion county, in the present 7th district.

Defendants' original answer, filed October 5, 1857, was general demurrer and plea of not guilty; also statute of limitation of three, five, and ten years, as well as long-continued possession of fifteen years.

Defendants, by amended answer filed March 31, 1859, reiterate their pleas of the statute of limitations, setting up claim to said land by virtue of patent to Robert Potter and under order of partition of said land, made by the Probate Court of Bowie county, making the transcript of the Probate Court of Bowie county an exhibit thereto.

On the 16th of October, 1859, plaintiffs filed an amended petition, in which they set out fully and specifically their title to said land sued for substantially as follows, viz:

On the 8th day of February, 1842, Robert Potter by deed conveyed one section of said land to Mrs. Sophia A. Mayfield, the wife of James S. Mayfield; and that on the 2d day of March, 1842, Robert Potter died in Red River county, in the Republic of Texas, upon the land in controversy, leaving a last will, wherein he gave and bequeathed to said Mrs. Mayfield the said section above mentioned, and also two other sections of his said survey; and that said last will was on the 10th day of January, 1843, admitted to probate in the county of Red River, appending to said amended petition a transcript of proceedings in said Probate Court. And that afterwards Mrs. Mayfield, still being the wife of James S. Mayfield, died in testate in the county of Fayette, on the -- day of April, 1852, seized and possessed, in her separate right, of said three sections of land; and that she left surviving her, her said husband and six minor children, naming them; and that at the May Term, 1852, of the County Court of Fayette county, letters of administration were granted upon the estate of Mrs. Mayfield to Benjamin Shropshire, who qualified and administered said estate; and that at the December Term, 1856, of the County Court of Fayette county, said Shropshire was ordered to sell said land for partition among the heirs of Mrs. Mayfield, her husband having died long before that date; that, in obedience to said order of sale, the said Shropshire, as said administrator, sold said land, and appellants became the purchasers thereof; that said sale was confirmed, and on the 25th day of February, 1857, said administrator made a deed to said land to appellants, making said deed and a certified transcript of the proceedings in the County Court of Fayette county in said estate of Mrs. Mayfield an exhibit thereto.

And that the said last will of Robert Potter being proved as aforesaid, was never in anywise set aside, nor had any proceeding therefor ever been instituted, and that the same was binding and in full force. And that one Robert W. Smith, the testamentary executor of said will, was, about the 14th day of February, 1843, appointed executor of said will by said Probate Court of Red River county, and administered said estate under said will in said Probate Court until about May 26, 1845, when he resigned said executorship, settled his accounts, and was discharged by said Probate Court.

And that said act of settlement and order of discharge were the last acts of administration of said estate, and that said administration had constantly been and was then pending in the County Court of Red River county.

And that the pretended administration of said estate in Bowie county was void for want of jurisdiction of the Probate Court of Bowie county of said estate, pending administration in Red River county.

And that the pretended judgment of the County Court of Bowie county partitioning said land was null and void for the want of service on any and every party interested in said estate.

And that the defendant, Harriet A. Ames, before her marriage with her co-defendant, was the wife of one Solomon C. Page, who had, during his said marriage with the said Harriet, received a league and labor of land from the Republic of Texas.

And that the said Harriet A. Ames was never the lawful wife of the said Robert Potter, and that her claims thereto were in fraud of the rights of petitioner.

On the 22d of May, 1871, appellee, Harriet A. Ames, filed an amended answer, alleging the death of her late husband and co-defendant, Charles Ames, praying to defend this suit, and again pleading the statute of limitation of three, five, and ten years, alleging herself to be the surviving wife of Robert Potter, deceased, and that the land sued for was the community property of herself and the said Potter, and that the same was set apart to her by a decree of the County Court of Bowie county, and that she had held, possessed, cultivated, and enjoyed the same by virtue of said community right and partition; making a transcript of the records of Bowie county, in said suit of petitioner, an exhibit thereto, also alleging improvements in good faith, giving value thereof, and praying to be allowed the value thereof.

On June 1, 1872, defendant amended her answer, alleging the deed from Robert Potter to Mrs. Mayfield to be of no force and effect, that the same was without consideration, and a fraud upon the rights of defendant and a cloud upon her title, and that there was born unto the said Potter and defendant in lawful wedlock two children, naming them, and that she and said children were the only family of said Potter recognized by him in Texas, and that as the head of said family the land sued for was granted to the said Potter by the Republic of Texas; that the will of said Potter was in fraud of the rights of said children and defendant and in violation of the statute of wills then in force in the said republic, and therefore void; alleging outstanding title in the minor heirs of one of said children of the said Robert Potter, one of them having died in infancy and the other died leaving surviving him children; alleging the administration of the estate of said Sophia A. Mayfield by said Shropshire to be a nullity, by reason of no service of his application for letters of administration on said estate, and his failing to give bond as such administrator in the time required by law; alleging further, that appellants did not pay the purchase-money for said land before instituting this suit.

On the fourth of June, 1872, appellants filed an amended petition, alleging that more than four years have elapsed since the date of admitting said will to probate, and that no action had been taken in a court of competent jurisdiction to set aside said will, by reason whereof defendants were and are barred of any action to set aside said will; and, by way of replication to said pleas of the statute of limitation, alleged the coverture of Mrs. Mayfield at the date of said deed by said Potter to her and at the date of the death of said Potter, and that said disability of coverture continued to the date of her death, on the thirtieth day of March, 1852; and that afterwards, about November, 1852, the said James S. Mayfield died, leaving surviving him the children of the said marriage, five minor children, whose minority continued until after the sale of said land to appellants by said Shropshire.

On the fifth day of June, 1872, defendant filed an amended answer, alleging that defendant intermarried with Charles Ames about the twenty-third day of August, 1842, and continued the wife of said Charles Ames to the date of his death, in 1866, and reiterating her previous defenses of fraud upon the statute of wills, and the want of jurisdiction of the court of Red River county to probate said will, and the nullity of the administration of the estate of Mrs. Mayfield in Fayette county, for reasons aforesaid.

On June 6, 1872, appellants filed an amended petition, setting up the statute of two years in bar of the frauds alleged in defendants' several answers and amended answers.

On the seventh of October, 1859, appellants demurred to the several pleas of the statute of limitation.

Upon the trial of the cause, April, 1872, the court overruled said demurrer and exceptions of appellants to defendants' answers and amended answers, and a jury being waived, after hearing the evidence, gave judgment for appellants for the section of land conveyed to Mrs. Mayfield by the deed of Robert Potter in 1842, and for all cost of suit; and as to the other two sections adjudged that appellants take nothing, from which judgment both parties gave notice of appeal, but only the plaintiffs in the court below perfected the appeal.

J. H. Rogers and A. W. O. Hicks, for appellants, in support of the proposition that Potter could convey his headright land to Mrs. Mayfield by deed, though his wife was living and it was to her injury, cited 15 Tex., 468;17 Tex., 99;24 Tex., 444.

2. That no one but his children could controvert his right to dispose by will of all his community interest, citing 10 Tex., 87, 94;12 Tex., 458, 459;17 Tex., 91;13 Tex., 94;14 Tex., 171.

3. That appellee lost the right to annul the will by suit after four years from its probate, citing Hart. Dig., art. 997; 17 Tex., 30, 80;15 Tex., 288;2 Tex., 590;10 Tex., 83, 94;12 Tex., 456.

4. After the conveyance to Mrs. Mayfield and the probate of Potter's will Mrs. Ames had neither title or color of title to form the basis of limitation, citing ...