Moore v. Kempner

• Decision Date: 05 December 1905
• Citation: 91 S.W. 336
• Parties: MOORE et al. v. KEMPNER et al.
• Court: Texas Court of Appeals

91 S.W. 336

MOORE et al. v. KEMPNER et al.

Court of Civil Appeals of Texas.

December 5, 1905.

Appeal from District Court, Houston County; John J. Wood, Judge.

Action by Georgie V. Moore and another against Eliza Kempner and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

H. W. Moore, for appellants. Nunn & Nunn, for appellees Ross. Adams & Adams, for appellee Kempner.

PLEASANTS, J.

This is an action of trespass to try title, brought by appellant Georgie V. Moore, joined by her husband, H. W. Moore, against the appellee, Eliza Kempner, to recover a tract of 160 acres of land, a part of the Henry Orender survey in Houston county. The defendant answered by general demurrer and plea of not guilty, and vouched in her warrantor, T. L. Ross, who also answered plaintiff's petition by general demurrer and plea of not guilty, and vouched in his warrantors, Ellen B. and J. O. Ross. These defendants also pleaded not guilty to plaintiff's petition. The cause was tried without a jury, and judgment was rendered in favor of defendants, that plaintiffs take nothing by their suit.

The first assignment of error presented in appellants' brief is as follows: "The court erred in overruling plaintiff's motion for a new trial as set out in said motion. The plaintiffs demanded an abstract of the titles of defendant, Eliza Kempner, and her warrantors, J. O. Ross and Ellen Ross. Eliza Kempner claimed through T. L. Ross, and T. L. Ross claims through J. O. Ross and Ellen B. Ross, and J. O. Ross and Ellen B. Ross claim from J. H. Burnett and H. O. Burnett, and all these transfers described the land as `Turner Skidmore Place' and `Turner Skidmore Homestead,' and same purchased by Nunn and Williams at sheriff's sale. Defendant, Eliza Kempner, files her abstract as above stated, and brings in her warrantors, J. O. Ross and Ellen B. Ross; and they file their abstract and describe the land as 204 acres of land on the south Orender, and give field notes, and was purchased at trustee sale, and not at sheriff's sale. This shows that J. H. Burnett and H. O. Burnett, who conveyed to J. O. Ross and Ellen B. Ross, were mistaken as to the tract of land and their source of title." The proposition under this assignment is as follows: The statute provides that "proof from a common source may be made by the plaintiff by certified copies of the defendant's deeds, showing his claim of title to the land, emanating from and under a common source." The statement supporting the assignment and proposition consists of copies of the abstracts of title filed by the several defendants, together with the field notes of the land sued for and the field notes of the land sold to the warrantors, Ellen B. and J. O. Ross, as shown by the abstract of title filed by them, and also a statement from the record to the effect that the appellants proved a valid judgment against J. T. Skidmore in favor of L. W. Cooper, and a sale under execution issued upon said judgment of a 160-acre tract of land upon which the J. T. or Turner Skidmore homestead was situate. This assignment fails to point out the error complained of with sufficient certainty to require our consideration....