Pierce v. Baker

• Decision Date: 20 September 1940
• Docket Number: No. 2039.,2039.
• Citation: 143 S.W.2d 681
• Parties: PIERCE et ux. v. BAKER.
• Court: Texas Court of Appeals

Page 681

143 S.W.2d 681

PIERCE et ux. v. BAKER.

No. 2039.

Court of Civil Appeals of Texas. Eastland.

September 20, 1940.

Rehearing Denied October 18, 1940.

Appeal from District Court, Palo Pinto County; Sam M. Russell, Judge.

Action in trespass to try title by Roy Baker, administrator of the estate of Texas Rector, deceased, against Eugene Pierce and wife and others. From an adverse judgment, named defendant and wife appeal.

Affirmed.

H. F. Grindstaff and Smith & Smith, all of Anson, for appellants.

Joseph A. Chandler, of Stephenville, W. O. Gross, of Mineral Wells, and Woodruff & Holloway, of Brownwood, for appellee.

GRISSOM, Justice.

Roy Baker, administrator of the estate of Texas Rector, deceased, filed suit in trespass to try title to 530 acres of land in Palo Pinto County against Eugene Pierce and wife. Boyd Hart and others, who, together with Mrs. Pierce, are the heirs at law of Texas Rector, deceased, were also made parties defendant. The defendants, other than the Pierces, adopted the allegations of plaintiff's petition and, in effect, became parties plaintiff.

The Pierces answered by plea of not guilty and general denial. They admitted the qualification of Baker as administrator of the estate of Texas Rector, deceased, on December 6, 1937; they further alleged that Texas Rector was formerly the owner of the land but that in 1932 she made a parol gift of the land to Eugene Pierce. By cross-action the Pierces alleged that Eugene Pierce was the owner of the land and prayed that the title thereto in said defendant be quieted. The parties, other than Baker and Eugene Pierce and the husbands of some of the parties, were the heirs at law of Texas Rector, deceased. This is not disputed. Baker sought recovery of the land solely as administrator. The record discloses that Baker, as administrator, was entitled to recover as a matter of law unless Mrs. Rector had given the land to Pierce. This was the only question in dispute relative to the title to the land.

The jury found that Mrs. Rector did not give her property to Eugene Pierce. It further found that the rental value of the property for 1938 was $10, and the value of the gasoline taken from the premises by Eugene Pierce since the death of Mrs. Rector was $10.

The court rendered judgment awarding to the administrator title to and possession of said land, and judgment against Eugene Pierce for $20. (The judgment further recited that it was without prejudice to any of the rights of the defendants as heirs at law of Texas Rector, deceased, and without prejudice to the rights of Baker to administer the estate under direction of the probate court.) From this judgment Eugene Pierce and wife have appealed.

Appellants contend they were entitled to an instructed verdict because plaintiff failed either to connect himself, as administrator, with a complete chain of title from the sovereignty of the soil, or to establish a common source of title. It is true plaintiff did not prove a complete chain of title from the State down to himself as administrator, but it is evident plaintiff and defendant Pierce claim title from a common source, to-wit, Texas Rector. Plaintiff claimed title to the land in controversy solely as her duly appointed and qualified administrator. (His appointment and qualification as such was established by the undisputed evidence and admitted by appellants' pleading.) Pierce asserted title from Texas Rector by virtue of a parol gift from her to him. Pierce alleged Texas Rector was the owner of the land prior to the time that she gave it to him. As heretofore stated, the only issue relative to title was whether or not Texas Rector did in fact give the land to Pierce. This was a disputed issue which the jury resolved against appellants.

The court did not err in overruling appellants' motions for an instructed verdict and for judgment notwithstanding the verdict. Luckel v. Sessums, Tex.Civ.App., 71 S.W.2d 579, 580; Brown v. Shaffer, Tex.Civ.App., 78 S.W.2d 1054, writ dismissed; Organ v. Maxwell, Tex.Civ.App., 140 S.W. 255, writ refused; Tinsley v. Magnolia Park Co., Tex.Civ.App., 59 S.W. 629, writ refused; Caplen v. Drew, 54 Tex. 493; Keys v. Mason, 44 Tex. 140, 142; Robinson v. Randell, Tex.Civ.App., 211 S. W. 625, writ refused; Dean v. Grogan-Cochran Lumber Co., Tex.Civ.App., 58 S. W.2d 552; House v. Reavis, 89 Tex. 626, 35 S.W. 1063.

Appellants' first assignment of error is that the court erred in overruling appellants' motion for an instructed verdict. Appellants contend they were entitled to an instructed verdict because (A) Baker, as administrator, failed to show his authority to prosecute the suit, and failed to establish a cause of action, in that, (1) plaintiff failed to show that the next of kin to deceased had waived their prior right to be appointed administrator; (2) because plaintiff failed to introduce in evidence his application for appointment as administrator; and (3) failed to prove he had filed an inventory and appraisement.

Appellants did not deny under oath the authority of Baker to sue as administrator, and they are precluded from raising the question for the first time on appeal. Art. 2010, R.S. 1925; Nelson v. Detroit & Security Trust Co., Tex.Com.App., 56 S. W.2d 860, 861; Schlottmann v. Wiese, Tex. Civ.App., 86 S.W.2d 44, 49; Balfour v. Collins, 119 Tex. 122, 128, 25 S.W.2d 804; Grundy v. Broome, Tex.Civ.App., 90 S. W.2d 939, 942.

In the absence of a verified denial that plaintiff did not have legal capacity to sue, or was not entitled to recover in the capacity in which he sued, such facts not appearing from plaintiff's pleading, proof thereof was not required. Art. 2010; Dolsen v. De Ganahl, 70 Tex. 620, 8 S.W. 321. However, plaintiff did allege his appointment and qualification as administrator and appellants, in their answer, admitted plaintiff's qualification as administrator. Furthermore, plaintiff introduced in evidence the order of the probate court appointing him administrator as well as his oath and bond as such. This certainly constituted proof of Baker's appointment and qualification. Young v. Meredith, 38 Tex.Civ.App. 59, 85 S.W. 32, writ refused. Article 3357, R.S. 1925, provides the order in which persons are entitled to appointment as administrator of an estate. Under said statute the "next of kin" of deceased were entitled to priority over Baker in securing appointment as administrator, if they did not waive such right. However, we are of the opinion that failure to prove that the next of kin had waived such right, if they did, does not have the effect attributed to it by appellants. They apparently rely strongly upon the case of Templeton v. Falls Land & Cattle Co., 77 Tex. 55, 13 S.W. 964. The...