Phillips v. Palmer

• Decision Date: 19 May 1909
• Citation: 120 S.W. 911
• Parties: PHILLIPS et al. v. PALMER et al.
• Court: Texas Court of Appeals

120 S.W. 911

PHILLIPS et al. v. PALMER et al.

Court of Civil Appeals of Texas.

May 19, 1909.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Action by Mattie B. Phillips and another against L. P. Palmer and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Lewis A. Kottwitz and J. A. Gillette, for appellants. Tharp & Whitehead and Stevens & Pickett, for appellees.

REESE, J.

In this case appellant Mattie B. Phillips, joined by her husband, sued appellees in trespass to try title to recover a tract of 320 acres of land, the Charles Underton survey, in Liberty county. Defendant Swilley disclaimed as to 20 acres of the tract claimed by defendant Palmer, and Palmer disclaimed as to all of the tract except this 20 acres. The parties, respectively, as to the land claimed by them pleaded not guilty, and the bar of the statute of limitations of three, five, and ten years. To the plea of limitations plaintiff Mattie B. Phillips replied life estate in her grandmother, Mrs. Van Bibber, formerly Mrs. Martha G. Richardson, who died December 11, 1900. The suit was filed January 28, 1905. The case was tried with a jury, resulting in a verdict and judgment for defendants, from which plaintiffs appeal.

The uncontradicted evidence shows the following facts: On January 4, 1840, the board of land commissioners of Liberty county issued to Charles Underton a conditional certificate for 320 acres of land, upon which an unconditional certificate was issued October 3, 1842. Patent issued to Charles Underton October 3, 1848, for the 320 acres, being the land in controversy. Another conditional certificate for like amount was issued to him by the board of land commissioners of Galveston county in May, 1839, followed by an unconditional certificate issued also on October 3, 1842, and upon this patent also issued for 320 acres of land June 9, 1848. Underton died at some date prior to 1847. The date of his death is not shown. It only appears that L. W. Dake was appointed administrator of his estate upon the petition of Ann Underton, his widow, on June 2, 1847. The administrator was discharged upon his application, in which he was joined by Ann Underton, in 1849, upon his statement that no claims had been presented and no assets had come into his hands. On May 24, 1848, Ann Underton, as sole heir of the estate of Charles Underton, conveyed the land in controversy to A. B. Jones. This deed was established by parol. Appellant Mattie Phillips testified as to its existence, in the possession of her grandmother, Mrs. Richardson, and to its contents, that it had been duly recorded in Liberty county after having been acknowledged, etc., and to its loss. The records of Liberty county were destroyed by fire in 1874. This deed was further established by the recitations in the deed from Jones to Chauncy Richardson, June 10, 1848. A. B. Jones conveyed the land to Chauncy Richardson by deed duly recorded in Liberty county in 1848, and containing the recitations of the conveyance by Ann Underton to Jones. Chauncy Richardson died in 1852, leaving a will which was duly probated, whereby he devised all of his property to his wife for life, with remainder to his daughter, Ann Sophia, the mother of appellant Mattie Phillips, and the only child of Chauncy and Martha Richardson. Ann Sophia married, and died in 1881, leaving appellant Mattie Phillips her sole heir. Mrs. Richardson died in 1900. Appellees did not undertake to connect themselves by deed with Underton, but proved a deed recorded and possession thereunder since about 1872.

The court submitted the case to the jury upon the following charge: "You are instructed that the uncontroverted evidence in this case leaves but one issue for the court to submit to you for your determination, and that issue is whether the land certificate which was located upon the land in controversy was issued to Charles Underton before or after he married Ann Underton (then Mrs. Radcliff). If you find from the evidence that Charles Underton and Ann Underton were man and wife at the time the said land certificate was issued to Charles Underton, then the land in controversy was community property of Charles and Ann Underton, and you will find for the plaintiff for the land sued for. If you find from the evidence that the said land certificate was issued to Charles Underton before he intermarried with Ann Underton, then the land sued for was the separate property of Charles Underton, and in case you so find you will return a verdict for the defendants."

The court thus found, as matter of law, and we think correctly, that Mrs. Underton executed the deed to Jones, and against appellees' claim under their plea of limitation, basing such finding, we assume, upon the pendency of the life estate in Mrs. Richardson, during the existence of which the statute did not run against the remainderman, leaving as the only issue to be decided by the jury whether the deed of Mrs. Underton to Jones passed the title, and making this to depend upon whether Charles Underton and Mrs. Underton were married at the date of the issuance of the certificate to Underton. No complaint is made of the charge of the court by either party. The uncontradicted evidence is sufficient to show that the parties were married before Underton's death, which occurred at some date prior to 1847, and that Mrs. Underton was, prior to the marriage, the widow of one Radcliff; her name being Ann Radcliff. She had two daughters by the first marriage; but she and Underton had no children.

Under the law then existing, he would have been entitled to 640 acres of land as a married man or head of a family, but only to 320 acres if single, and not a head of a family. Article 4167, Paschal's Dig. It seems to be admitted by appellees that Underton received 640 acres as a headright, in the two certificates referred to for 320 acres each; but they insist that this may have been granted to him as a single man and head of a family. According to the theory of the law in the court's charge, if Underton acquired the certificate prior to his marriage, it was his separate property, and at his death...