Moore v. Unknown Heirs of Gilchrist

• Decision Date: 16 April 1925
• Docket Number: (No. 8663.)
• Citation: 273 S.W. 308
• Parties: MOORE et al. v. UNKNOWN HEIRS OF GILCHRIST et al.
• Court: Texas Court of Appeals

273 S.W. 308

MOORE et al. v. UNKNOWN HEIRS OF GILCHRIST et al.

(No. 8663.)

Court of Civil Appeals of Texas. Galveston.

April 16, 1925.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action of trespass to try title by W. C. Moore and another against the unknown heirs of Mary Owens Gilchrist and others. From a judgment awarding them an undivided one-half interest in the land in controversy, plaintiffs appeal. Reversed and rendered.

I. S. Handy and Gill, Jones & Tyler, all of Houston, for appellants.

Cole, Cole & O'Connor and R. J. Jones, all of Houston, for appellees.

PLEASANTS, C. J.

This is an action of trespass to try title, brought by appellants W. C. Moore and the Texas Company against the unknown heirs of Mary Owens Gilchrist, the unknown heirs of Willie McNabb, and a number of other named defendants, to recover title and possession of several lots or parcels of land on the Edward Shipman survey in Harris county, fully described in the petition. All of the defendant unknown heirs above designated were duly cited by publication, and were represented upon the trial by an attorney appointed by the court. The other defendants appeared and answered. The answer of none of the defendants contained any pleading other than a general demurrer, general denial, and plea of not guilty. In addition to general allegations of title, plaintiffs specially pleaded title by limitation under the 5 and 10 years' statutes of limitation.

The trial in the court below, without a jury, resulted in a judgment in favor of plaintiffs for an undivided one-half interest in the land in controversy, and that they take nothing against defendants as to the remaining one-half of the land. The evidence shows that the land in controversy is a part of a one-quarter of a league on Greens bayou in Harris county, granted by the state of Cohuila and Texas to Edward Shipman.

In a partition proceeding in the probate court for Ft. Bend county, had in 1840, and to which all the heirs of Edward Shipman were parties there was set aside to John Owens, surviving parent and guardian of the minor heirs of Christina Owens, deceased, one of the heirs of Edward Shipman, a tract of land described as "one-quarter of a league of land on Greens bayou which belonged to the estate of Edward Shipman, deceased." The inventory of the estate of Edward Shipman, theretofore filed in the same court, showed the following only:

"One-quarter league of land containing 1,111 acres lying on Greens bayou in the county of Harrisburg, about 16 miles from the city of Houston. One-half of one-third league of land containing 740½ acres lying on the Brazos river, about 20 miles below Richmond, being part of one-third league granted Thomas Burnett. One certificate for three-fourths of a league, and one labor unlocated."

This partition decree shows that the certificate for three-fourths of a league and one labor of land, issued to the administrator of the estate of Edward Shipman, was awarded to John M. Shipman. The only other tract inventoried as a part of the estate of Edward Shipman, besides the land in controversy, was an undivided one-half interest in one-third of the league on Brazos river, which was awarded to James R. and Moses G. Shipman. This tract was recited in the inventory to be on the Brazos river, and in the partition to be below and adjoining the league granted to Moses Shipman, which Moses Shipman league was recited in the same decree to be on the Brazos river. The heirs of Christina Owens, to whom this quarter league of land was awarded by this partition judgment, were Daniel, Mary, and Elizabeth Owens. Daniel died in infancy, and his sisters, Mary and Elizabeth, inherited his interest in the land. Mary married J. G. Gilchrist, and Elizabeth married J. P. Magee.

By deed of date April 5, 1859, Mary Gilchrist, joined by her husband, J. G. Gilchrist, conveyed to J. P. Magee here one-half interest in the "E. Shipman tract of land on the east side of Greens bayou, containing in all 957½ acres." This deed further describes the land as "lying and being situated in Harris county." There is no separate acknowledgment by Mrs. Gilchrist of this deed, and it was therefore ineffectual as a conveyance of her title. Thereafter J. P. Magee and his wife resided on and claimed the entire one-quarter league; several portions of which they inclosed and cultivated for more than 10 consecutive years.

Elizabeth Magee died prior to 1907, leaving a number of children and grandchildren. In a suit for partition of her estate between her heirs and her surviving husband, J. P. Magee, the district court of Harris county rendered a decree in January, 1907, setting aside and awarding to J. P. Magee a tract of land described as "tract No. 13 of the partition consisting of 1,006 acres of land out of the Shipman survey." The field notes of tract No. 13 given in the decree describe the Edward Shipman survey in Harris county, of which the land in controversy is a part, and except therefrom a tract of 7½ acres described in the decree by metes and bounds. A certified copy of this decree was promptly recorded in the deed records of Harris county.

We here copy from appellants' brief the following statement of the evidence identifying the land described in this decree as the Edward Shipman one-quarter league in Harris county:

"Tract No. 13 in the commissioners' report, shows the size and shape of the survey, the number of acres it contained and the fact that it was situated on Greens bayou. The plat attached to the decree shows that the land awarded was the Edward Shipman survey, and was situated on the east side of a bayou (which the field notes of the decree calls Greens bayou), and that its southwest corner was directly east and across the bayou from the southeast corner of the Thomas Earl survey. The plat further shows that...