Owen v. Shaw

• Decision Date: 01 January 1857
• Citation: Owen v. Shaw, 20 Tex. 81 (Tex. 1857)
• Court: Texas Supreme Court
• Parties: WILLIAM E. OWEN & WIFE v. OWEN SHAW AND OTHERS.

20 Tex. 81

WILLIAM E. OWEN & WIFE

v.OWEN SHAW AND OTHERS.

Supreme Court of Texas.

1857.

A decree for specific performance of a contract to convey land, in a suit against the administrator of the vendor and guardian of his sole heir, if valid, conclusively determines the estate of such heir. 16 Tex. 413;24 Tex. 441.

Where service of citation was acknowledged on the 19th, and the return day was on the 23d, less than five days thereafter, and no answer was filed, but the entry of judgment recited the appearance of the parties, and it did not appear from the certified copy of the judgment whether it was rendered at the next or a subsequent term of the court, it was held that the judgment was not invalid for want of jurisdiction of the person of the defendant.

Where the plaintiff in an action of trespass to try title, claimed as sole heir of A, and some of defendants pleaded not guilty, and others pleaded not guilty and that they claimed title under A, but did not state the particulars; the defendants having given in evidence a decree in favor of one under whom they claimed, against one sued as the administrator of A and guardian of the plaintiff, for the specific performance of a bond to convey the land sued for, and it being admitted that the defendant in said decree was administrator of A; it was held that it was not necessary for the defendants to prove aliunde that the defendant in said decree was guardian of the plaintiff, although the said decree was rendered against him as guardian and not as administrator.

That a decree purports to detail the facts proved, but fails to state facts sufficient to justify such decree, is no objection to its validity.

Where the title to a league and labor of land was issued by the republic to the heirs of one who was killed in the Alamo, and in a suit against the administrator of the deceased and guardian of his sole heir, there was a decree for a conveyance of one-half league of said land, upon a contract of the deceased to convey one-half league of his headright, it was held that the heir who had come of age, was concluded by said decree, and could not recover back said half-league, in an action of trespass to try title, which she claimed on the ground that she became entitled to the land, not as heir of the deceased, but as donee in her own right, under the tenth section of the general provisions of the constitution of the republic.

See this case and sections 9 and 11 of the act of limitations of February 5th, 1841, and section 142 of the act of May 13th, 1846, to regulate proceedings in the district court (Hart. Dig. arts. 2385, 2387, 794), as to mode of proceeding where it is claimed that injustice was done to minors by a decree of the district court.

Error from Travis. Tried below before the Hon. Edward H. Voutress.

Action of trespass to try title, commenced in Williamson county, October 17th, 1855, by William E. Owen and Eliza Ann Owen, his wife to recover of defendants the east half of a league of land in Williamson county. The plaintiffs claimed as sole heir of Sherrod J. Dover, who died in 1835, and by patent to the heirs of said deceased. The defendants pleaded not guilty, the statute of limitations, and suggested improvements in good faith; and two of them alleged that they claimed under Sherrod J. Dover. Venue changed to Travis county.

It was agreed that all the parties claimed under the same patent; that said Dover was killed in the Alamo in the fall of 1835, leaving as his only heir, his daughter, the plaintiff Eliza Ann, who was born in Texas in November, 1834, and had resided here ever since, and prior to the institution of this suit had intermarried with William E. Owen; that in 1837 Jonathan Burleson administered on the estate of Sherrod J. Dover, applied to the board of land commissioners of Bastrop county, and obtained a certificate for a league and labor; located a league on the league of land described in the petition; had it surveyed, and returned the field notes and obtained a patent to the heirs of Dover in 1841; that the government dues and office expenses were paid by said administrator, as well as the surveyor's fees for the second survey. Here plaintiff closed.

Defendants gave in evidence a decree of the district court of Bastrop county as follows: Petition of Edward Burleson, alleging that on the 27th day of August, 1835, Sherrod J. Dover made and delivered to one John J. Tumlinson his certain written obligation, which was attached and made part of the petition, for title to the east half of his headright league which had already been selected and surveyed, in consideration that said Tumlinson should clear the league out of the office; that said league was afterwards granted to said Dover by the republic of Texas, and here the field-notes were given; that in the month of ____ of said year 1835, said Dover died without complying, etc., notwithstanding the said Tumlinson did fully and completely comply with each and every stipulation on his part in said agreement mentioned, and did fully pay all charges and expenses which were necessary to procure a title for said league of land from the government; that said Sherrod J. Dover left a daughter, Eliza Ann, who was his only child and sole heir, then and still under the age of puberty; that one Jonathan Burleson, of said county, administered on the estate of said Dover, and was likewise duly appointed guardian of the person and property of said Eliza Ann; that said Tumlinson, for value, conveyed his interest in said land to plaintiff; that said Jonathan Burleson, administrator and guardian as aforesaid, has failed and refused to convey said east half, etc.; prayer for citation to said Jonathan Burleson, administrator and guardian as aforesaid; and for conveyance, etc. Citation issued accordingly to said Jonathan Burleson, administrator and guardian as aforesaid. Returned “Service acknowledged this the 19th November, 1841. Jonathan Burleson. Returned the 19th November, 1841. Preston Conlee, sheriff.” Decree: This day came the parties and submitted their case to the court, the plaintiff by L. C. Canningham, his attorney, claimed of defendant a title, etc. (reciting the bond and proof of the genuineness thereof, and the transfer to plaintiff and the proof of the genuineness thereof), wherefore it is ordered, adjudged and decreed, etc. (for title from defendant in his capacity of guardian of said Eliza Ann Dover). The date or term when said decree was rendered, was not shown by the transcript thereof, nor otherwise. Conveyance accordingly from Jonathan Burleson, as guardian, to Edward Burleson, dated October 20th, 1842. Defendants then gave in evidence consecutive chains of title from said Edward Burleson to them, respectively. It will be noticed that it did not appear when the plaintiffs intermarried.

The judge instructed the jury, without request, That the decree in the suit of Edward Burleson v. Jonathan Burleson, guardian of the plaintiff, Eliza Ann, and administrator of Sherrod J. Dover, and the deed from said Jonathan to said Edward, under that decree, conveyed the right of the heir, and therefore the plaintiff had no right to recover.

Plaintiff requested the following instructions, which were refused: 1st. That the judgment offered in evidence by the defendants is no bar to the plaintiff's right of action; but that under the statute the plaintiff had a right to a second action. 2d. That the judgment offered is not conclusive that Burleson was guardian; and it was necessary for the defendants to prove it as any other fact, before the judgment could include the plaintiffs. 3d. That the judgment was void for want of jurisdiction, both of the subject matter and of the person. 4th. That if the jury are not satisfied from the evidence that Burleson was guardian of the plaintiff, Eliza Ann, they will find for the plaintiffs. 5th. If the jury, from the evidence, are satisfied that Eliza Ann Owen is the sole heir of Dover, deceased, they will find for the plaintiff, unless they are satisfied that the title passed from her ancestor, by some act of his, or unless they believe that all the requirements of the bond were complied with by those under whom the defendants claim.

Verdict and judgment for the defendants. Motion for new trial overruled, etc.

There was a bill of exceptions to the admission in evidence of the decree in the suit of Edward Burleson v. Jonathan Burleson, administrator and guardian, on the following grounds: 1st. Because the defendant, Jonathan Burleson, guardian, was not served with process, nor had any legal notice of said suit five days before the commencement of the term of the court at which judgment was rendered. 2d. Because said Burleson was not before said court by service of process and a copy of the petition, nor by a voluntary appearance in person, or by counsel. 3d. Because the instrument sued on was in violation of law, and void. 4th. Because said judgment was rendered without any evidence of a compliance with the terms and conditions of the bond sued on by plaintiff or his assignor, Tumlinson. 5th. Because the judgment was...