Merriman v. Blalack

• Decision Date: 28 June 1909
• Citation: 121 S.W. 552
• Parties: MERRIMAN et al. v. BLALACK et al.
• Court: Texas Court of Appeals

121 S.W. 552

MERRIMAN et al. v. BLALACK et al.

Court of Civil Appeals of Texas.

June 28, 1909.

Rehearing Denied October 7, 1909.

Appeal from District Court, Hidalgo County; W. B. Hopkins, Judge.

Action by Titus E. Merriman and others against P. E. Blalack and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

D. B. Chapin, R. J. Swearingen, and Don A. Bliss, for appellants. Dougherty & Dougherty and Beasley & Beasley, for appellees.

REESE, J.

In this suit Titus E. Merriman and others sue, in trespass to try title, to recover of P. E. Blalack and G. T. Hawkins the title possession of an undivided thirteen-eighteenths of a tract of land described as the upper one-half of the upper league of a five-league grant called Agostadero del Gato, situated on the Rio Grande river in Hidalgo county, originally granted to Juan Jose Trevino. It is to be gathered from the recitals of the original answer of defendants, filed October 1, 1907, that the original petition was filed May 1, 1907. The date of the institution of the suit does not otherwise appear, as only the second amended petition of plaintiffs is in the record, which refers to the date of the first amended petition as October 2, 1907, but not to the date of the filing of the original petition. The plaintiffs claim title as heirs of Henry Merriman, the basis of such claim being that the land was the property of said Henry Merriman at his death, and that they as part of his heirs inherited from him the thirteen-eighteenths thereof sued for. Title of defendants in fee simple to three-eighteenths, and their ownership of two-eighteenths additional during the life of Elizabeth Merriman under the deed to Julio Guzman, Sr., seem to be conceded. Defendants pleaded general denial, not guilty, and under appropriate allegations pleaded title under the statute of limitations of 3, 5, and 10 years. Plaintiffs specially pleaded common source of title in Henry Merriman, and title in themselves under such common source to the undivided interest sued for. The case was tried by the court without the assistance of a jury, and a judgment rendered for defendants, from which plaintiffs prosecute this appeal.

The trial court prepared and filed conclusions of fact, which in the main, and as to the material facts involved, are supported by the evidence. It is not necessary here to set out these conclusions in full. The following brief summary embraces the material facts established by the evidence.

(1) The land in controversy is a tract of 762 varas, base line river front, running back between parallel lines to the back line of El Gato survey of five leagues. The tract is the upper or western half of the upper or western league of said five-league survey, which was originally granted to Juan Jose Trevino, and was by him conveyed to Francisco Balli in 1834, and by Balli and wife, on January 1, 1853, conveyed by deed to Mrs. Elizabeth Merriman, wife of E. T. Merriman.

(2) The deed to Mrs. Merriman contains the following recitals: "Whereas Elizabeth Merriman of said county of Hidalgo is the owner of five hundred dollars of her separate property and in her right, and whereas the said Francisco Balli has agreed to sell the said portion of said tract or grant so by him purchased of said Trevino as aforesaid for said sum of five hundred dollars, now therefore," following by words of conveyance of the land to Mrs. Merriman, her heirs and assigns, in consideration of the payment by her of the said sum of $500, not, however, in language conveying it to her in her separate right or as her separate estate. The trial court found that these recitals established that the land was paid for wholly by money belonging to Mrs. Merriman in her separate right and was her separate estate, and in this conclusion we agree.

(3) On June 20, 1854, being then married to Dr. E. T. Merriman, and living with him as her husband, Mrs. Merriman, by a deed executed and properly acknowledged by her as a married woman, conveyed the land referred to, to Henry Merriman, but her husband did not join in the conveyance, nor did he ever afterwards, by any subsequent instrument, join with his wife in the conveyance of this land. After the execution of this deed Eli T. Merriman conveyed to Henry Merriman another tract of land, adjoining the tract in controversy, in which deed he referred to the land he was then conveying as adjoining the tract sold by Elizabeth Merriman to Henry Merriman. No other title was shown in Henry Merriman than this deed, and the evidence authorizes the conclusion, as found by the trial court, that he had no other title.

(4) The deed from Balli and wife to Mrs. Merriman contained the further recital that the land had been conveyed to him by Juan Jose Trevino in the year 1834.

(5) The deed from Mrs. Merriman to Henry Merriman contained the recital that the land had been granted by the Mexican government to Juan Jose Trevino, and by Trevino to Francisco Balli, and by Balli to Mrs. Elizabeth F. Merriman.

(6) It appears also that on March 5, 1878, the tax collector of Hidalgo county sold and conveyed to one Handy all the right, title, interest, and estate of Henry Merriman in and to this land, and that on November 26, 1878, Handy quitclaimed it to Henry Merriman, both deeds duly recorded.

(7) Henry Merriman died in 1861, leaving as his heirs at law two brothers and one sister. Eli T. Merriman was one of the brothers, and he died in 1867, leaving surviving him his widow, Elizabeth Merriman, and certain children.

(8) On July 9, 1883, Elizabeth Merriman, then a feme sole, and the following children of herself and Eli T. Merriman, to wit, Henrietta C. Fusselman (joined by her husband S. P. Fusselman), John C. Merriman, James E. Merriman, George Merriman, and E. T. Merriman, by their deed of that date, conveyed to Julio Guzman, in consideration of $487.08, "all our and each of our right, title, interest, estate, claim and demand in and to a certain tract of land situated in the county of Hidalgo, state of Texas," describing the land in controversy. The deed contains a recital that the land had been conveyed by the original grantee, Juan Jose Trevino to Francisco Balli, by Balli to Elizabeth Merriman, and by her to Henry Merriman, "all of which appears of record in record books of Hidalgo county." The land is conveyed "with all and singular the hereditaments and appurtenances thereto belonging or in any wise appertaining; to have and to hold the above-described premises to the said Julio Guzman, his heirs and assigns forever," but has no warranty. After the names of the grantors in the body of the deed appears the following: "And being all heirs of Henry E. Merriman."

(9) The grantors in the aforesaid deed are some of the heirs of Henry Merriman. The plaintiffs constitute all of the heirs except said grantors, and are entitled to thirteen-eighteenths of his estate.

(10) Immediately after the sale by Elizabeth Merriman and others to Julio Guzman, in July, 1883, said Guzman went upon the land in controversy, and built a pasture inclosing a part of the land in controversy, inclosing about 200 acres thereof on the south side of the tract adjoining and fronting on the Rio Grande. He claimed all the land in controversy in this cause from the time he went into possession thereof until his death, and had a field within said pasture. In 1883 he built a house on the western boundary of the tract in suit, and also put in a field in the northern part of said tract, and he cultivated the same continuously until his death in 1901. The house erected on the northern part of the land he occupied continuously through his tenants, and grazed large herds of cattle and horse stock on same, and also had herds of sheep and goats thereon. The acreage in the tract varied considerably after the purchase thereof by Guzman, by reason of the erosion and caving-in of the Rio Grande river banks forming the southernmost boundary thereof, such caving and erosion shortening and cutting off the lower portion of the tract to the extent of about one-half mile to one mile. The acreage of the land in controversy is about 3,800 acres. Julio Guzman claimed to own the Santa Anna league, which adjoined the Gato league on the west, and in 1882 moved on the Santa Anna grant, erecting houses thereon, and continued, with his tenants, to live thereon until his death in 1901, and continued to use the land in controversy in connection with the Santa Anna land.

(11) The wife of Julio Guzman died intestate prior to the death of her husband, who died intestate in 1901, leaving as his heirs his eight children, the survivors of whom, with the children of those since deceased, are his and her sole heirs at law.

(12) After the death of Guzman his children and grandchildren remained in possession of the land, claiming the whole of it as their own, cultivated, used, and enjoyed the same, and had exclusive, adverse possession thereof until they conveyed to P. E. Blalack, the defendant.

(13) Blalack succeeded by regular deeds to the title of all of the heirs of Guzman. These deeds were executed and recorded at different dates, as follows: Deed of Amado, a son, dated February 8, 1902, recorded February 12, 1902; Dolores Guzman, a daughter, married to Longorio, and joined by her husband, dated March 4, 1902, and recorded March 14, 1902; Esterfana Guzman Garceres, a daughter, widow, deed dated February 3, 1902, recorded November 3, 1902; Librada Cantu, grandchild, deed dated February 10, 1902, recorded March 10, 1902; Prudencio Cantu, grandchild, deed dated February 8, 1902, recorded February 14, 1902; Adelaida Cantu, grandchild, deed to John Closner, dated July 13, 1907, recorded same day; deed from John Closner to Blalack August 24, 1907, recorded same day; Pedro Guzman, a grandson, deed dated June 25, 1902, recorded same day; Manuel Garza, a grandson, deed dated February 8, and recorded February 14, 1902; Julia, Esterfana, Francisca,...