Morris v. Hand

• Decision Date: 17 April 1888
• Citation: 8 S.W. 210
• Parties: MORRIS v. HAND <I>et al.</I>
• Court: Texas Supreme Court

8 S.W. 210

MORRIS v. HAND et al.

Supreme Court of Texas.

April 17, 1888.

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

Davis & Garnett, for appellant. Stephens, Mattock & Herbert, for appellees.

MALTBIE, J.

This suit was brought on the 5th day of June, 1884, by the appellees, James Hand and others, the only heirs of Jacob S. Hand, against the appellant, J. S. Morris, to recover a tract of land in Montague county patented to the heirs of John J. Hand. The evidence puts the title to the land in appellees unless their claim is defeated in whole or in part by other facts proven on the trial. The land was patented September 6, 1855, by virtue of a certificate issued to the heirs of John J. Hand, on account of services rendered by said Hand in the Texas revolution. John J. Hand was massacred at Goliad, leaving Jacob S. Hand his only heir at law. Appellees derive their title as heirs at law of Jacob S. Hand. It was shown that on the 17th day of May, 1854, Jacob S. Hand entered into a written contract with Leander Fox by which Hand agreed to give Fox one-half of all the lands to which he was entitled in Texas as the heir of his son John J. Hand, in consideration that Fox should recover the same from J. C. Cordova and R. R. Royal, obligating himself to convey to Fox one-half of the land, and acknowledging that Fox was the owner of one-half of such land, and that he (Hand) had no claim or title to such half. It appears that both Fox and Hand were residents of Montgomery county, in the state of New York, and that they continued to reside there until the death of Hand, which occurred in the year 1860. Appellant introduced in evidence a transcript of the proceeding of the supreme court of Montgomery county, N. Y., in the matter of Lewis C. Brown, committee of Jacob S. Hand, which showed that on 7th day of April, 1859, Hand was adjudged a lunatic, and that Brown was appointed committee of his estate. It also contained the petition of Brown as such committee, filed in the supreme court of Montgomery county on January 28, 1860, showing that, during the year 1857, Leander Fox commenced in said supreme court against Jacob S. Hand a suit for the specific performance of the above contract of May 17 1854, and that, afterwards, on 17th day of November, 1858, judgment was rendered requiring Jacob S. Hand within 20 days thereafter to execute to Leander Fox a deed to one-half of all the lands in Texas to which he, Jacob S. Hand, was entitled as heir of John J. Hand, and, in default thereof, that Jacob S. Hand pay to Fox the sum of $2,500 as the value of the lands; that Hand failed to comply with the decree, and that judgment was rendered against him for $2,855.32, as the value of the land and costs and damages, which judgment was a lien on all of the real estate of Hand situated in Montgomery county. The petition further represented that Brown, as committee, had obtained a stay of the judgment, with leave to file an answer, but, not believing that he would be able to successfully defend the suit, he had entered into an agreement with Fox to compromise it, Fox to take the whole of the Texas lands in satisfaction of the judgment; and asked that such compromise be approved by the court as beneficial to the estate. The court, after taking proof, adjudged that it would be beneficial to the estate of Jacob S....