Murrell v. Wright

• Decision Date: 18 November 1890
• Citation: 15 S.W. 156
• Parties: MURRELL <I>et al.</I> v. WRIGHT.
• Court: Texas Supreme Court

Page 156

15 S.W. 156

MURRELL et al. v. WRIGHT.

Supreme Court of Texas.

November 18, 1890.

Appeal from district court, Henderson county; F. A. WILLIAMS, Judge.

Rev. St. Tex. 1879, art. 1198, provides that no person who is an inhabitant of the state shall be sued out of the county of his residence, except in suits for the recovery of land, which must be brought in the county where the land, or a part thereof, lies.

Greenwood & Greenwood, for appellants. Gregg & Reeves, for appellee.

HENRY, J.

This suit was brought by George A. Wright against Benjamin Murrell, Walter Murrell, E. B. Smyth, C. T. Scott, and H. M. Morrison, to try the title to and partition two separate tracts of land, one lying in Henderson county, and the other partly in Henderson and partly in Anderson county. The Murrells were alleged to be minors, and Smyth was sued as the guardian of their estates. Morrison was sued as administrator of the estate of N. P. Coleman, deceased, who was alleged to have been a partner with defendant Scott, under the firm name of C. T. Scott & Co. The defendants Murrell and Smyth were alleged to reside in Limestone county, and Scott and Morrison in Henderson county, Tex. The plaintiff's petition was in the form of an action of trespass to try title. C. T. Scott, as surviving partner of C. T. Scott & Co., answered, alleging that they owned a specific portion of the land in controversy, which they described. For Murrell and Smyth numerous defenses were pleaded, to some of which exceptions were sustained. They also filed and insisted upon some exceptions to plaintiff's petition. Such as we are asked to revise are stated in the assignments of error.

Appellants' first assignment of error is "that the court erred in overruling the plea of privilege of appellants to be sued in Limestone county, and their objections to being sued in this case in Henderson county, because the proof showed the appellee's cause of action was a parol contract to pay him a part of the land sued for, for certain services, and money alleged to have been paid and rendered to Wilson Lumpkin, executor of John Murchison, and the basis of the action was an executory contract, and the suit one for specific performance of parol contract to convey lands, and appellee, calling it `trespass to try title, could not make the appellants answer in said court." The evidence disclosed that John Murchison died leaving an independent will, which was duly probated, making Wilson Lumpkin his executor. Lumpkin accepted the trust, and duly qualified. The will authorized the executor to sell at private or public sale the testator's personal property, or such part thereof as he might deem best, and from the proceeds, and from the money and assets on hand, to pay taxes, debts, if any, and supply the guardian of the testator's children with the means of supporting and educating them. The estate owned an unlocated land certificate. The judge of the district court, before whom the case was tried without a jury, stated his conclusions of fact in the following language: "Plaintiff and Wilson Lumpkin, independent executor of the will of John Murchison, deceased, made a contract by which plaintiff was to locate the certificate, and to pay all expenses of procuring the unlocated balance of the certificate from the land-office, and the land-office fees and expenses of locating the certificate and securing a patent for the land. Plaintiff, by the contract, was to receive one-half of the land for these services. The certificate would have been barred in 30 or 40 days from the time when the contract was made. Before he made the contract, Lumpkin inquired of a competent and experienced surveyor whether the location could be made for less than plaintiff demanded, and was informed that it could not be. Plaintiff performed his part of the contract, and secured the location of the certificate and the issuance of a patent for one tract, and did all that was essential to procure the issuance of a patent for the other one, except the payment of the land-office fees. In 1888, plaintiff, having in the land-office money sufficient to pay said fees, demanded a patent for the larger tract. The commissioner refused to issue to him, on the ground alone that some person assuming to act for defendants had forbidden its issuance to him. The representatives of Benjamin Murrell applied for and received the patent and paid the fees, amounting to $21.44. Plaintiff, on learning this, tendered the amount paid to the...