Padgett v. Guilmartin

• Decision Date: 27 January 1915
• Docket Number: (No. 2330.)
• Citation: 172 S.W. 1101
• Parties: PADGETT v. GUILMARTIN.
• Court: Texas Supreme Court

172 S.W. 1101

PADGETT v. GUILMARTIN.

(No. 2330.)

Supreme Court of Texas.

January 27, 1915.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by E. P. Padgett against J. F. Guilmartin. From a judgment of the Court of Civil Appeals (138 S. W. 1143) reversing in part a judgment for plaintiff, he brings error. Reversed, and judgment of district court affirmed.

E. P. Padgett, of Hemphill, in pro. per. A. E. & S. M. Davis, of San Augustine, for defendant in error.

BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement of facts upon which the court entered its final judgment:

"The evidence in the record justifies the following fact conclusions: The land in controversy is a part of a tract of land titled to Wm. Clark by the Mexican government in June, 1835. On October 12, 1838, Wm. Clark conveyed a part of his headright survey, which included the land in controversy, to his son, Elijah Clark. Appellee claims title through deeds executed to him by certain of the heirs of Elijah Clark. About the year 1853, Elijah Clark contracted to sell to his brother-in-law, Paschal Ashmore, 100 acres of land, being the land in controversy; the consideration being that Ashmore would pay $1 per acre for the land and move onto the tract and be a neighbor of Elijah Clark. Acting under this contract, Ashmore built a small log house or hut on the land, cleared up a few acres, which he partially fenced, and with his wife moved on the land and lived there a little more than a year, when he and his wife separated and both moved off and abandoned the land. The contract between Ashmore and Elijah Clark was verbal, and Clark never executed any deed or other conveyance of the land to Ashmore. Elijah Clark died soon after Ashmore left the place, and his wife died in 1863. While the testimony is meager, we think it sufficient to support the court's conclusion that Ashmore never paid for the land. There was never any active assertion of title by any of the Clarks after Ashmore moved off the place until about the time plaintiff purchased the land, but the Clarks believed that the land had not been paid for by Ashmore, and some of them were openly claiming the land as far back as 25 or 30 years ago. They never paid taxes on it, however, after Ashmore went into possession. When Ashmore moved off the land, he sold his improvements thereon to Colon McRae, but made him no deed to the improvements or to the land. On October 10, 1869, H. C. Hicks sold the land in controversy to J. M. Burroughs, reciting in the deed that it was the same land that J. H. McRae had previously sold to Hicks. There was no proof offered to show that the title was ever in J. H. McRae, and none to show a conveyance by McRae to Hicks, except the recital in the deed above mentioned. Burroughs died leaving a will which was duly probated, and defendant Guilmartin claims the land by mesne conveyances from the executors of Burroughs' estate. The land was rendered for taxes in 1861 b...