Montgomery v. Noyes

• Decision Date: 05 March 1889
• Citation: 11 S.W. 138
• Parties: MONTGOMERY <I>et al.</I> <I>v.</I> NOYES <I>et al.</I>
• Court: Texas Supreme Court

Page 138

11 S.W. 138

MONTGOMERY et al.

v. NOYES et al.

Supreme Court of Texas.

March 5, 1889.

Commissioners' decision. Appeal from district court, Harris county.

This is an action of trespass to try title, instituted November 25, 1885, by Catherine Montgomery, her husband, James Montgomery, and others, against L. T. Noyes, Peter Shone, W. H. Chilton, and James Cowling, to try the title to fractional 10-acre lot No. 20, a part of the James S. Holman survey, within the city of Houston. Defendants Cowling and Shone filed their joint answer, November 5, 1886, pleading not guilty, and disclaiming as to all said 10-acre lot No. 20, except block B and lots 5, 6, 7, 8, 9, 10, 11, and 15, in block A. Defendant Chilton answered separately, March 5, 1886, pleading the general issue and the statute of limitations of 10 years. Defendant Noyes answered separately, and filed his first amended answer November 1, 1886, demurring to plaintiffs' petition, pleading not guilty, and alleging that plaintiffs' title, if they had any, was a stale demand, and disclaiming as to all except certain lots described in the answer. The case was tried by the court without a jury, November 1, 1886, and judgment rendered for defendants. Plaintiffs appeal.

F. G. Morris, for appellants. Hutcheson, Carrington & Sears, for appellee Noyes.

COLLARD, J.

Amelia Harrell, wife of Josiah T. Harrell, was the surviving wife of Isaac Batterson, deceased, and administratrix of his estate. She was entitled to one-half of his head-right league and labor certificate. The certificate was located on and covered nearly all the James S. Holman survey of one-third of a league. Mosely Baker, assignee of Holman, in settlement of the controversy of priority of the two locations, executed deeds to each of the children of Batterson for several parts of the Holman survey, and also about the same date, May 12, 1845, executed a deed to Josiah T. and Amelia Harrell, before the Batterson administration was closed for the land in controversy, reciting in all the deeds that they were made "for and in consideration that the heirs and legal representatives of Isaac Batterson, deceased, have withdrawn all claim in and to the head-right survey of James S. Holman south of and adjoining the two-league grant of John Austin." These deeds were duly recorded May 26, 1845. The Batterson head-right certificate was then lifted and relocated in Navarro county, surveyed May 7, 1847, patent issued, and the land was afterwards owned and controlled by the Batterson heirs. In June, 1846, Josiah T. Harrell, for himself and wife, Amelia, in consideration of $500, executed a deed, he signing her name, to J. W. Henderson, for the land in controversy; it being a part of the land conveyed by the Baker deed to Harrell and wife. Appellees deraign title from Henderson by warranty deeds, reciting considerations of $500 to $1,000, and proved payment of the same for their respective lots and parcels of land. Appellants, except J. H. Collett, are heirs at law of Amelia Harrell, and Collett deraigned regularly from them for the land claimed by him ten twenty-fourths of the land sued for. Mrs. Harrell died in 1861, after her husband, who died before the war. Appellants claim that the land was the separate property of Amelia Harrell, of which Henderson and his vendees had notice by the recitals in the deed of Mosely Baker to Harrell and wife, which was duly recorded. Appellees claim that the land was community property of Mrs. Harrell and her husband, and if not so in fact it was presumptively so by the deed to them, and that Harrell's deed to Henderson conveyed the title so far as innocent purchasers are concerned. The effect of the deed of Mosely Baker to Josiah T. Harrell and his wife, Amelia Harrell, was to vest the legal title to one undivided half of the land conveyed in each of the grantees. Mayes v. Manning, ante, 136, (decided at the present term of the supreme court;) Edwards v. Brown, 68 Tex. 332, 4 S. W. Rep. 380, 5 S. W. Rep. 87. But the facts in proof show that Mrs. Harrell's interest in her separate right in the location of the Batterson certificate constituted the consideration for which the deed was executed, not her interest in the Batterson certificate, but in its location. That interest was surrendered and preference given to the location of the Holman certificate in consideration of the deed from Baker, who at the time owned the Holman location. These facts put the equitable title to all the land conveyed by the deed in her. It is immaterial that the Batterson certificate was afterwards floated and located elsewhere, and that she still retained her interest in the second location, and it is needless to inquire what her claim by...