Miller v. Miller
| Decision Date | 27 January 1904 |
| Citation | 78 S.W. 1085 |
| Parties | MILLER et al. v. MILLER et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
A. C. Prendergast, for plaintiffs in error. H. N. Atkinson and Taylor & Gallagher, for defendants in error.
On November 5, 1900, appellants instituted this suit against appellees. The petition was in two counts. The first comprised an action of trespass to try title to five tracts of land; the second count pleaded in detail the facts relied on for a recovery, and prayed for both legal and equitable relief, including partition. By amended answer filed November 23, 1901, the defendants admitted that the plaintiffs were entitled to a part of one of the tracts of land, and to all other matters pleaded general denial, not guilty, and the statutes of two, three, four, five, and ten years' limitation. After hearing all the testimony, the trial court refused to submit any issues to the jury, and gave a peremptory charge to find for the plaintiffs an undivided interest of 560/1792 in the 200-acre tract of land and $41.40 rent thereon. Such verdict was returned, and judgment accordingly rendered, and the plaintiffs have appealed.
The undisputed testimony shows that Jesse W. Miller and Priscilla Miller were married in March, 1851, and that Priscilla died in April, 1877. The plaintiffs claim as the heirs of Priscilla Miller. The 200 acres of land, in which the defendants and the court recognized the plaintiffs' interest, were acquired by Jesse W. Miller during the lifetime of his wife, Priscilla. The plaintiffs attempted to show that the other tracts of land which were subsequently acquired by him were paid for in whole or in part with community funds on hand at the death of Priscilla Miller, but the testimony on that subject was too meager and uncertain to authorize the submission of any such issue to the jury. There was testimony tending to show that at the time of Mrs. Miller's death there was a considerable sum of money and other personal property on hand and in possession of Jesse W. Miller, which within a few years after the death of his wife he converted to his own use; and the plaintiffs would be entitled to recover for their mother's half interest therein were they not barred by the statute of limitations. The contention that after the death of his wife ...
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