Moore v. City of Waco

• Decision Date: 10 June 1892
• Citation: 20 S.W. 61
• Parties: MOORE <I>et al.</I> v. CITY OF WACO <I>et al.</I>
• Court: Texas Supreme Court

20 S.W. 61

MOORE et al. v. CITY OF WACO et al.

Supreme Court of Texas.

June 10, 1892.

Appeal from district court, McLennan county; L. W. GOODRICH, Judge.

Trespass to try title by Ed Moore, as guardian of Maria E. Woodward Wortham against the city of Waco and others. Plaintiff obtained judgment for an estate for life. Plaintiff and the city of Waco and other defendants appeal. Reversed.

Wm. M. Flournoy, for appellant Ed Moore. E. A. McKenney, for appellants E. R. Wortham, W. T. Montgomery, and Montgomery minors. John F. Flint, for appellant City of Waco. Herring & Kelley, for appellees J. A. Leftwich, guardian, and Susan A. Leftwich.

HENRY, J.

This is an agreed case and is stated as follows by the parties: "This is an action of trespass to try title for the recovery of an acre of land in the city of Waco, brought by Ed Moore, as guardian of Maria E. Woodward Wortham, who was for years prior to 19th June, 1878, and still is, a non compos mentis, and beyond the hope of recovery. This suit was brought in the district court of McLennan county on 29th of August, 1891, against the city of Waco, and against E. R. Wortham, who was one of the children of said Maria E. Woodward Wortham, and against the other appellees herein, who were the children of a deceased daughter and a deceased son of said Maria E. Woodward Wortham. All the defendants pleaded "not guilty," and the city of Waco also pleaded the statute of limitation of five years. The defendant E. R. Wortham, and those claiming under the deceased daughter, Ann Maria Montgomery, also set up specially that the deed hereinafter quoted, under the circumstances surrounding the parties at the date of its execution, passed the whole title in the property to the children of said Maria, who were E. R. Wortham, N. J. Wortham, and Ann Maria Montgomery. The minor children of said Ann Maria Montgomery were represented herein by their guardian and father, William F. Montgomery, who also appeared for himself. The minor children of N. J. Wortham, deceased, were represented herein by their guardian, J. A. Leftwich, who had intermarried with the widow of said N. J. Wortham, deceased, who died in 1885. Said Leftwich and wife were also parties herein. There were other parties to the suit, but they were disposed of in such a way by the decree that their rights are not involved in this appeal, as all parties were satisfied therewith. Trial was had on December __, 1891, and judgment rendered in plaintiff's favor for an estate for life in said land, and that she recover said land as against the defendants, who are appellees herein. The plaintiff and the city of Waco and E. R. Wortham and the minor children of N. J. Wortham, by their guardian and their mother, Susan A. Leftwich, and all the children of Ann Maria Montgomery, (the minors being represented by their guardian,) and their father, W. F. Montgomery, gave notice of appeal, which in due course was duly perfected, and they have assigned errors.

One of the questions invoked upon this appeal is the proper construction of the following deed, which was introduced in evidence: "The state of Texas, county of McLennan: Know all men by these presents, that I, N. J. W. Wortham, of the county of McLennan and state of Texas, for and in consideration that I am indebted to my wife, Maria E. Woodward, now and for many years a non compos mentis, for whom I am curator and guardian by appointment of the proper court in the parish of East Feliciana, state of Louisiana, the indebtedness being on account of property and money belonging to my said wife, which I have appropriated to my own use and behoof, amounting to many thousand dollars, I have bargained, sold, and conveyed to Ann M. Montgomery, wife of Wm. F. Montgomery, Eben R. Wortham, and N. J. Wortham, all of whom are children of the said Maria E. Woodward, in trust for said Maria E. Woodward, all the right, title, and interest which I have in and to the following described lands lying and being in the state of Texas, to wit: (1) 50 acres of land in Calhoun county, out of the Maximo Sanchez league, etc. (2) Wm. Graham 640-acre donation tract in Harris county, etc. (3) Isaac H. Bear 1/3 league in Falls county, etc. (4) Jno. Richardson 1/3 league in Bosque county, etc. (5) (6) One acre of land in the city of Waco, etc. (7) Francis W. Smith 320-acre tract, assignee of Jas. B. Cowen, in McLennan county, etc. (8) My interest in S. P. Wilson headright, in McLennan county, etc. (9) The lower half of C. B. Emmons ¼ league in McLennan county, etc. Together with all and singular the rights, members, improvements, hereditaments, and appurtenances to the same belonging or in any wise incident or appertaining. To have and to hold all and singular the said premises unto the said Ann M. Montgomery, wife of Wm. F. Montgomery, Eben R. Wortham, and N. J. Wortham, her children, in trust for her and themselves forever. I bind myself to warrant and forever defend this against the claims of all others to the same in law and equity. Witness my hand and scrawl for seal this 19th of June, A. D. 1878. N. J. W. WORTHAM." The deed was duly acknowledged same day and was duly recorded in McLennan county on 22d ...