Orr v. O'brien

• Decision Date: 02 May 1881
• Docket Number: Case No. 263-3087.
• Citation: 55 Tex. 149
• Parties: W. F. ORR v. MARY O'BRIEN.
• Court: Texas Supreme Court

55 Tex. 149

W. F. ORR

v.MARY O'BRIEN.

Case No. 263-3087.

Supreme Court of Texas.

May 2, 1881.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

Suit instituted July 29, 1873, appellants claiming the lots in controversy as the heirs of Wm. S. Orr. Originally this was an action of trespass to try title to lots Nos. 7 and 8, in block No. 70, in Austin City; subsequently, by amendment, changed to a suit for partition and to try title. This amendment was filed June 1, 1874. Defendant filed, June 16, 1874, two amended answers, in one of which was pleaded the statutes of limitation and occupancy for more than one year in good faith, with valuable improvements; the other sets up in detail the circumstances under which Mrs. Orr made the conveyances to one Wm. Custard; and also giving fully the consideration for which those conveyances were made, which will be found sufficiently stated in the opinion.

Below will be found a statement of title as claimed and shown by the records:

Said lots 7 and 8, in block 70, according to the plan of the city, abut east on an alley, and west on Colorado street, and are each 46 feet wide by 160 feet long; but in 1849 they were divided by lines run north and south, into three lots, each of which fronts north 53 1/3 feet on Bois d' Arc street. This suit involves title to the west lot of the three.

In 1839, at a public sale of Austin City lots, Neri Chamberlain bought lot 8, and James Burk lot 7. On February 20, 1840, all the purchase money for lot No. 8 had been paid to the government, and the patent issued to Neri Chamberlain. Chamberlain conveyed to McLure & Co. on the 6th of March, 1840. James Burk conveyed lot No. 7 to McLure & Co. on the 19th day of February, 1840; and on the 10th of November, 1840, the third installment of the purchase money due the government on lot 7, making $1,350, had been paid, leaving then due $450. The firm of McLure & Co. was composed of W. R. McLure, W. S. Orr, T. S. N. King and Thomas G. Gordon. Gordon conveyed his common interest in lots 7 and 8 to W. S. Orr on the 22d of July, 1840, and T. S. N. King on the 4th of December, 1841. W. R. McLure never paid any money or contributed anything of value to the common fund of the W. R. McLure & Co. copartnership.

Appellants are the children of W. S. Orr and Martha J. Orr.

On the 28th of February, 1842, W. S. Orr executed to Wm. Custard his bond for title to lot No. 5, in block No. 70, and out-lot No. 31, in division O of the Austin City out-lots, thereby obligating himself to cause a patent to be issued therefor to Custard on the 1st day of May, 1842. W. S. Orr died March 3, 1845, without having complied with his bond for title; and leaving a last will, which constituted his widow, Martha J. Orr, sole executrix and legatee, with full power to dispose of all his property for the benefit of herself and children, without bond, and without supervision by or accountability to the probate court. This will was duly probated January 26, 1846, in Brazoria county.

Wm. Custard applied to Martha J. Orr for his title to lots 5, in block 70, and 31, in division O, on the 7th of September, 1846--more than four years and four months after the date when, by W. S. Orr's bond, the patent was to issue to Custard; and she then made him an instrument purporting to be a conveyance of lots Nos. 5, 7 and 8, in block No. 70, and signed it, “Wm. R. McLure & Co., by Martha J. Orr, administratrix of W. S. Orr, deceased.” On November 28, 1846, she made another deed to him for lots Nos. 7 and 8, in block No. 70, and again, on May 1, 1847, still another to lot No. 5, in block 70, and No. 31, in division O.

W. S. Orr had, in 1841, brought a suit in the district court of Travis county to divest out of W. R. McLure the interest that he apparently had in lots Nos. 5, 6, 7 and 8, in block 70, and died pending the suit. Defendant claimed that Custard (the obligee in bond for title) bore the expense incident to procuring the final decree in that case, and that he also paid a balance of purchase money on lots 5 and 7, in block 70, to the government, and also paid Mr. Orr $50 in coin, in payment of a note he let Orr have, etc.; which payment, together with his deeds from Martha J. Orr and the running of limitation, it was claimed gave him, and gives appellee, the title to lots 7 and 8, in block 70.

Appellants claim title as the children and heirs of Wm. S. Orr, deceased.

The case was tried June 23, 1875, and resulted in a verdict and judgment for appellee.

The will of W. S. Orr will be found copied in the opinion.Smith & Blackburn, for appellants.

I. As survivor of the community or executrix of the will, Mrs. Orr acted, and could act, only in a fiduciary or trust capacity; and could in that capacity convey nothing except for the payment of community debts of the estate. Now it is pretended by appellee that this was done as thus: That W. S. Orr had, on the 28th day of February, 1842, made a bond for title to Wm. Custard, obligating himself by the 1st day of May, 1842, to make to Custard a title to, not the lots here in dispute, but lot No. 5, in block 70, and lot 31, in division O, and had died in March, 1845, without performing his promise, and therefore Custard held a debt against the community estate and an incumbrance on it, and that to satisfy this claim the conveyances to Custard of these lots were made.

II. Said bond was to be complied with on the 1st day of May, 1842, and, not being complied with, Custard's right of action accrued then, and the statute of limitations began to run against it then; and four years from that date, to wit, May 1, 1846, his right to maintain a suit against Mrs. Orr as survivor of the community or executrix of the estate, became barred. W. S. Orr died, it is true, on the 5th of March, 1845; but there was no law in this state then suspending the running of the statute because of the death of the debtor, though the court below so charged in effect. Such a law was not enacted in Texas until 1852, and even then it remained suspended only until an administrator was appointed. The right claimed by appellee for Custard was not a right to the specific performance of the bond; such a right, we admit, runs with the land, and after the lapse of four years Custard still had the right to demand, and Mrs. Orr was compelled to make him a deed to the lots named in the bond, and did do so on May 1, 1847; but the claim of Custard against the estate of Orr was for damages for failure to pay the last installment of purchase money on lot No. 5 and lot No. 31, and to make the deed in compliance with the bond; it was a claim for money, and was barred on the 1st day of May, 1846. Glasscock v. Nelson, 26 Tex., 150.

III. The 13th and 15th sections of the act of the 28th of January, 1840, absolutely prohibited the parent to disinherit his children except for certain specified causes to be expressed in the will, and which are not found in Orr's will. Pasch. Dig., p. 644, and Rec., p. 83. And this act was not repealed until July 24, 1856, many years after Orr's death. As to the validity, scope and effect of said last will, the court below grievously erred in his charge. Haggerty v. Haggerty, 12 Tex., 460. The principle announced in Haggerty v. Haggerty, has been re-affirmed in a number of cases. Charle v. Saffold, 13 Tex., 94et seq.; Portis v. Cummings, 14 Tex., 174.

Shelley & Moore and Sheeks & Sneed, for appellee.

WATTS, J. COM. APP.

The appellants claim title to one-half of the property in controversy as the heirs of their deceased father, W. S. Orr, alleging his death in 1845, and that the property belonged to the community of their said father and their mother, Martha J. Orr.

Appellee claims title to the whole of the property sued for. The record shows, and both parties claim, a regular title from the sovereignty of the soil down to the estate of Orr, and it is admitted by appellants that there is a regular chain of transfers from William Custard to the appellee. It is claimed by appellee that Custard acquired the title to the lots by and through the last will and testament of said W. S. Orr, and certain conveyances from Mrs. Martha J. Orr to Wm. Custard, the first of which is dated September 7, 1846, and the other November 28, 1846.

To meet this claim of title upon the part of appellee, the appellants claim that said last will and testament was and is void as being in violation of the statute of forced heirship, which statute was in force at the time of the testator's death. And this is one of the controlling and decisive issues in the case. The will is as follows:

“REPUBLIC OF TEXAS, County of Brazoria:

To all whom these presents shall come: Be it known that I, William S. Orr, of the republic and county aforesaid, being of sound mind and memory, but laboring under a disease which may shortly terminate my existence, do make and declare this my last will and testament:

First. To my wife, Martha Jane Orr, I give and bequeath the following property, viz.: The place in which I now reside, containing two hundred and fifty-six acres, more or less; one negro boy named Tom, aged about seventeen; one horse, one mule, twelve head of cattle, my stock of hogs, household furniture and farming utensils, and also a headright certificate for six hundred and forty acres, granted me as a citizen of the government of Texas, together with all other property, both personal and real, of which I am at present possessed, for and during her natural life-time, to be applied as she may deem best to the support and maintenance of herself and our children; and in the event of her death, such of the property as may be left...