Morrison v. Cloud

• Decision Date: 31 January 1929
• Docket Number: (No. 762.)
• Parties: MORRISON et al. v. CLOUD et al.
• Court: Texas Court of Appeals

13 S.W.2d 735

MORRISON et al. v. CLOUD et al.

(No. 762.)

Court of Civil Appeals of Texas. Waco.

January 31, 1929.

Appeal from District Court, Brazos County; W. C. Davis, Judge.

Action by L. R. Morrison and others against J. C. Cloud and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. E. Neeley, of Bryan, and B. Jay Jackson, of Cleburne, for appellants.

Henderson & Hoyle and W. S. Barron, all of Bryan, for appellees.

GALLAGHER, C. J.

This suit was instituted by L. R. Morrison and others against J. C. Cloud and others in form of trespass to try title to recover 142 acres of land in Brazos county. Appellants' petition contains a formal count in trespass to try title, and a second count setting out their title and the title claimed by appellees. Said latter count discloses that both appellants and appellees are claiming under one Len Hudson as common source; that said Hudson executed and delivered to T. J. Woodward a deed to said tract of land; that said T. J. Woodward was the husband of Mrs. Martha Woodward, a daughter of said Hudson; that appellants claim that said deed of conveyance was intended to vest the legal title to said land in said Woodward in trust for his said wife; that Mrs. Martha Woodward died intestate January 18, 1886; that she left surviving her three children, Maud Woodward, Anson Woodward, and Sherman Woodward; that Maud Woodward married appellant L. R. Morrison; that she is now dead and that appellants L. R. Morrison, J. M. Morrison, Grady Morrison, Charlie Morrison, John Morrison, Marshall Morrison, Ottie Cowley, and Bonnie Cowley are her only heirs; that Sherman Woodward is now dead; and that appellants Herbert Woodward, Ralph Woodward, and Edgar Woodward are his children and only heirs. Said count further discloses that appellees claim under a regular chain of transfers from said T. J. Woodward, and also under a judgment for said land dated April 4, 1904, in favor of A. G. Buchanan, one of the intermediate grantors in said chain of title, against Mrs. Maud Morrison, Anson Woodward, and Sherman Woodward. Appellees pleaded said judgment and their chain of title from the plaintiff therein in abatement as an estoppel and in bar of a recovery by appellants.

There was a trial, in which the court heard evidence on the plea of res adjudicata, sustained the same, and rendered judgment against appellants that they take nothing by this suit.

Opinion.

Appellants present three assignments of error, which are in substance as follows: (1) That the court erred in sustaining the plea of res adjudicata as shown by the statement of facts; (2) that the court erred in finding that the parties to this suit were the same as the parties in the former judgment pleaded; and (3) that the court erred in finding that the determination of the issues and rights of the respective parties by the judgment in said former suit was an adjudication of the issues involved in this suit and determined the rights of the parties herein. Appellants, under said assignments of error, submit as grounds for reversal only two propositions. By the first of said propositions they contend that the cause of action asserted in the first count of their petition was separate and distinct from the cause of action asserted in the second count thereof, and that said judgment did not necessarily constitute a defense thereto, and that the judgment of the trial court should be reversed and the cause remanded to afford them an opportunity to introduce evidence of any other title to said land which they may be able to show. Said first count in appellants' petition was in the usual form of trespass to try title, but in their second count they alleged their title in detail. Such being the case, they were limited to proof of the title so pleaded. Snyder v. Nunn, 66 Tex. 255, 257, 258, 18 S. W. 340; Hughes v. Lane, 6 Tex. 289, 294; McDonald v. Red River County Bank, 74 Tex. 539, 540, 12 S. W. 235; National Lumber & Creosoting Co. v. Maris (Tex. Civ. App.) 151 S. W. 325, 326 (writ refused); Gatewood v. Graves (Tex. Civ. App.) 241 S. W. 264, 265; Hensley v. Pena (Tex. Civ. App.) 200 S. W. 427, 428.

Appellants, by their second proposition, contend that this suit is not between the same parties as such former suit, and that their cause of action asserted herein is another and different one from the cause of action asserted in said former suit. Appellees introduced in evidence a judgment of the district court of Brazos county, rendered on the 4th day of April, 1904, in favor of A. G. Buchanan as plaintiff against Maud Morrison, Anson Woodward, and Sherman Woodward as defendants, divesting them of all title to the land in controversy in this suit and quieting the title of the plaintiff Buchanan thereto. Appellants alleged in the second count in their petition as aforesaid that appellees were claiming under deeds of conveyance from T. J. Woodward to A. S. Bullock, from said Bullock to A. G. Buchanan, and from said Buchanan to appellee J. C. Cloud, and deed from said Cloud, conveying a part of said land to one Morgan, under whom the appellees other than said Cloud claimed. Said allegations were substantially in accord with the allegations made by appellees in their pleadings. Appellant Anson Woodward, one of the defendants in the original judgment, claimed equitable...