Peveto v. Richardson

• Decision Date: 01 May 1931
• Docket Number: No. 1992.,1992.
• Citation: 38 S.W.2d 133
• Parties: PEVETO et al. v. RICHARDSON et al.
• Court: Texas Court of Appeals

Page 133

38 S.W.2d 133

PEVETO et al. v. RICHARDSON et al.

No. 1992.

Court of Civil Appeals of Texas. Beaumont.

May 1, 1931.

Rehearing Denied May 6, 1931.

Appeal from District Court, Orange County; W. C. Ramsey, Judge.

Suit in trespass to try title by J. F. Richardson and others against W. A. Peveto and others, in which certain defendants filed a cross-action. From the judgment, W. A. Peveto and certain other defendants appeal.

Affirmed.

Wm. E. Loose, of Houston, and E. L. Reid and V. H. Stark, both of Orange, for appellants.

O. S. Parker, and O. M. Lord, both of Beaumont, Stephenson & Dies, of Orange, and A. M. Huffman, of Beaumont, for appellees.

WALKER, J.

The parties to this suit are too numerous to name individually, but will be described by groups holding and claiming common interests. The suit was in trespass to try title by J. F. Richardson et al. against Bob Hale and W. A. Peveto et al. and Francis D. Hollis et al., and was for the title and possession of the three following described tracts of land in Orange county: (a) All of the Jacob Beaumont, survey; (b) 100 acres out of the extreme southwest corner of the John Stevenson league lying contiguous to the northeast corner of the Beaumont survey, with a common line of 700 or 800 varas; (c) 165 acres out of the John Stevenson league lying immediately north of the east end of the 100 acres just described, and with its east line an extension of the east line of the 100 acres. The southwest corner of the John Stevenson league corners on the northeast boundary line of the Jacob Beaumont survey and the west boundary line of the league is the west boundary line of the 100 acres. Between the west boundary line of the league and the west boundary line of the 165 acres lying immediately north of the west end of the 100 acres, and consuming all the acreage between the west boundary line of the 165 acres and the west boundary line of the league, is another tract of land described in the record as the Dan Patillo tract. This tract of land is important only on the issue of appellants' title of ten-year limitation.

The defendants answered by demurrers, general denials, and pleas of not guilty and of the several statutes of limitations. The defendants Francis D. Hollis et al. also answered by way of cross-action, claiming an interest of 50 acres in the Jacob Beaumont survey. They also filed a cross-action against defendants Bob Hale and W. A. Peveto, claiming 100 acres in the John Stevenson survey. Fannie A. Sneed et al. intervened in the suit, claiming the 100-acre tract. All parties adversely interested to the plea of intervention answered the same by pleas of not guilty and by specially pleading the several statutes of limitation, and affirmatively claimed the land by way of cross-action. The trial was to the court without a jury, with judgment as follows, statement taken from appellants' brief:

"Thereafter on the 23rd day of November, A. D. 1929, the court rendered judgment in said cause in favor of the plaintiffs and against the defendants W. A. Peveto, et, al., and Bob Hale, and the defendants Francis D. Hollis, et al., for all of the lands and premises described in plaintiffs' petition except the 165 acre tract, which was awarded to these defendants, and in favor of the intervenors Fannie A. Sneed, et al., against all other parties to the suit, the title and possession of all the lands described in said petition in Intervention and being One Hundred (100) acres, more or less, in the Jno. Stephenson Survey.

"The court further decreed, in accordance with an agreement between intervenors Fannie A. Sneed et al. and the plaintiffs, that the plaintiffs recover an undivided 85/ 127ths interest, in the lands described in the petition in Intervention of Fannie A. Sneed et al.

"The court further rendered judgment that the defendants Francis D. Hollis et al., recover the title to an undivided interest of fifty (50) acres out of the Jacob Beaumont Survey as against the defendants W. A. Peveto et al. and Bob Hale, subject, however, to the terms of an oil and mineral lease theretofore executed by the defendants Francis D. Hollis et al. with the exception of O. M. Lord, to the defendant Bob Hale."

Only the defendants Bob Hale and W. A. Peveto et al. have appealed to this court from the judgment of the lower court.

The record title to the several tracts of land in controversy was as follows: The Jacob Beaumont survey was patented on the 7th day of November, 1890, to W. P. Williamson as assignee of Jacob Beaumont under a survey made by Surveyor J. A. Pinkston on the 13th day of June, 1890, and certified by him as containing 467½ acres of land. The land was located by virtue of confederate script No. 586 issued to Jacob Beaumont, on August 23, 1881, and transferred by him to George Williamson July 27, 1882, and surveyed for George Williamson on the 24th day of June, 1883, by Frank Cleveland, county surveyor of Orange county, and duly certified by this surveyor on the 10th day of September, 1883, as containing 661 acres of land. On the 10th day of December, 1885, George Williamson conveyed the survey to W. P. Williamson as containing 640 acres. On that same day W. P. Williamson conveyed to J. W. Faulk an undivided interest of 50 acres in the Jacob Beaumont. It is our understanding from the record that the Faulk title to the 50 acres was owned by defendants Francis D. Hollis et al., which 50 acres was awarded to them by the judgment of the court.

During his lifetime, George Stephenson acquired the record title to the 100 acres and the 165 acres above described, together with other land on the John Stephenson league, and, owning this land, contracted to convey to John Turner 441 acres thereof, for which he was duly paid by Turner, but died before making the conveyance. After his death, his executrix petitioned the probate court of Jefferson county, which court had jurisdiction of the estate of George Stephenson, deceased, for authority to execute a deed to John Turner for the 441 acres of land. To quote from the application: "Which the said Turner contracted for and justly paid for in the lifetime of the said deceased, and for which the said Turner has never obtained any title."

On February 27, 1849, under orders of the probate court in all respects regular, the executrix conveyed to John Turner the 100 acres and the 165 acres as above described, reciting in her deed as follows: "That I, Lydia Stephenson, of Jefferson County, in my capacity as Administratrix of the goods and Estate which were of Geo. W. Stephenson, late of Jefferson County, deceased intestate, for this purpose being duly authorized and empowered by a decree of the County Court, of Jefferson County, in consideration of One Hundred Dollars ($100.00) paid by John Turner to Geo. W. Stephenson, dec'd., in his lifetime, the receipt whereof I do hereby acknowledge, I do grant, etc., (here follows the granting clause and description of land conveyed)."

On January 14, 1881, John Turner conveyed the 100 acres to R. F. Jett, and on the 15th day of January, 1881, Jett conveyed it to W. P. Williamson, and on the 10th day of December, 1885, Williamson conveyed the same land to Faulk. This is the 100 acres in which interveners were awarded an undivided interest. As to the title of the interveners under which they recovered, the judgment awarding them their undivided interest contains the following recitation: "Being all the land in Orange County, Texas, deeded to Willis B. Moore by John Turner by deed dated February 11, 1854, filed for record in Orange County, Texas, on the same day."

It is not necessary to trace the title of W. P. Williamson to the 165 acres, as it seems to be conceded that he owned that tract on September 14, 1888. On that date, joined by his wife, W. P. Williamson conveyed to James Peveto an undivided interest of 611 acres in the Jacob Beaumont survey, the 165-acre tract, and a third tract described as follows: "Also fifty acres, more or less, of the Headright of John Stephenson, in Orange County, Texas, and known in the division of the Estate of said Stephenson as Division No. One, and to me deeded by R. F. Jett."

On the 4th day of June, 1893, James Peveto and wife executed a deed of trust to J. W. Faulk to the three tracts of land deeded to them by W. P. Williamson to secure him in an indebtedness of $1,050. On October 2, 1894, Faulk, as trustee, made a deed to this land to Almond Berwick, who, on the 1st day of June, 1899, reconveyed all of the land held by him under the trustee deed to James Peveto. Peveto recorded this deed in 1903. The judgment of the trial court held this deed to be void, and, while appellants have advanced propositions attacking this holding of the trial court, we understand from their brief that these propositions have been abandoned. However, this deed is important as affording the basis for appellants' plea of ten-year limitation. J. F. Richardson acquired the indebtedness held by W. P. Williamson against Peveto, and on the 25th day of August, 1896, was awarded judgment by the district court of Orange county foreclosing his mortgage lien as against Peveto and wife and Faulk and W. P. Williamson. All the land was sold under this foreclosure to appellee J. F. Richardson, and on the day of sale, to wit, the 3d day of November, 1896, the sheriff of Orange county executed to him a deed thereto. The description of the 50 acres on the Stephenson league and of the undivided interest of 611 acres on the Jacob Beaumont survey become material under appellants' propositions, which we will discuss later in this opinion.

Opinion.

Appellants' first seven propositions assert error on the ground that the trial court erroneously overruled their motion for a continuance because of the absence of their witness Joe Eaves. It was the first application of the defendants W. A. Peveto et al., but at the previous term of the district court of Orange county their codefendant, Bob...