Pleasants v. Dunkin

• Decision Date: 01 January 1877
• Citation: 47 Tex. 343
• Parties: H. CLAY PLEASANTS v. MATTHEW DUNKIN.
• Court: Texas Supreme Court

47 Tex. 343

H. CLAY PLEASANTS

v.MATTHEW DUNKIN.

Supreme Court of Texas.

1877.

APPEAL from Bastrop. Tried below before the Hon. J. P. Richardson.

On the 23d of January, 1872, H. Clay Pleasants, as administrator of the estate of John York, deceased, brought suit against Matthew Dunkin et al. and the heirs of said York, deceased, to obtain possession of 1476 acres of land in Bastrop county, patented to the heirs of George W. Davis, deceased. The petition alleged disseizen, use, and occupation by the defendants, and prayed for judgment for the land, for rent, and damages.

On March 28, 1872, the appellees, Dunkin and Clark, demurred generally and specially to plaintiff's petition, and urged a misjoinder of parties, in mingling in one suit, as defendants, the appellees, who were alleged to be wrongdoers and in possession of the land, with the heirs of John York, deceased.

On the 28th of March, 1872, the defendant Clark disclaimed any title to the land, but claimed to hold the same as tenant for his co-defendant Dunkin, and asked that all pleas and answers of said Dunkin be received as his also. On the same day, the defendant Dunkin answered. In his answer, he plead “not guilty,” and the three, five, and ten years' statutes of limitation.

On the 24th of July, 1872, the defendants amended their answer, and pleaded in bar of plaintiff's right of action the matter which will be found referred to in plaintiff's bill of exceptions.

On July 30, 1873, the defendants filed another amended answer, denying everything which had been alleged by the plaintiff, especially denying that any land certificate was ever issued by the board of land commissioners of Washington county to George W. Davis, on the first day of January, 1839, or on any other day in 1839, or to the heirs of the said George W. Davis in the year 1839, or that the original bona fide certificate issued to the heirs of the said George W. Davis ever was located upon the land sued for by plaintiff.

The parties agreed that the plaintiff was the legal administrator of John York, deceased.

The patent attached as an exhibit to the petition recited that it was based on a certificate issued to heirs of George W. Davis, by the board of land commissioners of Washington county, on the first day of January, 1839.

The parties waived a jury, and submitted the cause to the court, who overruled defendant's demurrers, and rendered judgment in their favor against the plaintiff for costs, and dismissed his suit.

From this judgment, the plaintiff Pleasants appealed. His assignments of error were the negative of the positions assumed by the court below, as the same appears in plaintiff's bill of exceptions.

On the trial, the plaintiff proposed to introduce in evidence--

1. The patent to heirs of George W. Davis, as the same was copied in the exhibit to plaintiff's petition.

2. Transcript of proceedings in the matter of the estate of George W. Davis, deceased, in the Probate Court of Washington county.

3. Proces verbal from Dan. J. Toler, judge of probate of Washington county, to Robert A. Lott.

4. Deed from R. A. Lott to John York, plaintiff's intestate.

To the introduction of which the defendants, Dunkin and Clark, objected, for the following reasons:

“First. Because the patent filed in this cause, and upon which the plaintiff relies for title from the Government to recover the land sued for, shows upon its face that the certificate located upon the land in controversy, and upon which the patent issued, was another and different certificate from the one described in the deed or transfer offered in evidence, to wit, a certificate issued to the heirs of one George W. Davis, on the first day of January, 1839, all of which shows that the land involved in this suit was patented upon another and different certificate than the one described in the deed or transfer offered in evidence, and therefore not admissible in evidence to establish title in plaintiff to the land described in the patent made a part of his petition.

Second. Because the said Dan. J. Toler, neither in his individual capacity, nor as judge of probate, had any right or authority to execute said deed or transfer, and that the same did not transfer or pass any title to the said R. A. Lott, and because said supposed deed or transfer was and is null and void, and irrelevant and inadmissible as evidence in this case for any purpose.

Third. Because the original petition filed by the said William Pettus, in the Probate Court of Washington county, praying for letters of administration upon the estate of the said George W. Davis, shows upon its face affirmatively that the Probate Court of Washington county had no jurisdiction over the estate of the said George W. Davis, if, in truth, at the date thereof, the said Davis was dead; and because said original petition shows upon its face that said George W. Davis was not dead at the date of the granting of said letters of administration; and because the petition shows upon its face that said George W. Davis never was a resident or inhabitant of the said county of Washington.

Fourth. The Probate Court of Washington county had no authority of law to order the sale of the certificate described in said deed or transfer; and for all the causes hereinbefore and hereinafter stated and set forth, said deed or transfer was and is null and void; and because the said William Pettus never was administrator of the estate of the said George W. Davis; because he never did execute any bond payable to the judge of probate, in accordance with the order of the court, and as the law then required; and because the certificate described in the deed or transfer never had been located upon the land described in plaintiff's petition, or any duplicate thereof; but the same is now in the district clerk's office of Washington county, as is shown by a certified copy, which is incorporated in the transcript from the Probate Court of Washington county, offered in evidence by the plaintiff.

Fifth. Because the transcript from the County Court of Washington county, of the proceedings in the matter of the estate of G. W. Davis, deceased, discloses the fact that no counsel was appointed by the court to represent the absent heirs of said Davis, deceased, and that said absent heirs were at no time, nor in any way, represented in said proceeding, nor did said absent heirs, or any one of them, at any time, or in any manner, assent to said order of sale, nor did such absent heirs, or any one for them, at any time, or in any manner, assent to, ratify, or confirm said sale; all of which was contrary to the express provisions of the law for such cases made and provided.

Sixth. Because no character of indebtedness was ever established by any one against the estate of said G. W. Davis, deceased, or presented to the pretended administrator, Pettus, for his allowance, or presented to the probate judge of Washington county for approval, in the manner and form prescribed by law; because there is no evidence in said deed or transfer, or otherwise, that the said William Pettus ever sold the certificate described in said deed or transfer, and because there is no legal evidence in said deed or transfer that the said R. A. Lott ever paid anything for said certificate, and said alleged deed or transfer is, therefore, a nudum pactum, if anything; because the said Dan. J. Toler had no authority to execute said deed or transfer, or to set forth that said William Pettus had acknowledged the receipt of two hundred dollars from the said R. A. Lott for the purchase-money of said certificate, and because said deed or transfer shows upon its face that it is not signed, and was not executed by the said William Pettus, or by his authority; because it is not such an instrument, when recorded, as makes constructive notice of title to the property described in it; because the administrator applied for, or demanded, a sale of the property in less than thirty days after his alleged appointment as administrator of the estate, when the law required him to wait thirty days after he was appointed, before he could demand a sale of property,--therefore said sale was and is void, and said deed or transfer pursuant thereto is void, and not admissible in evidence in this case to establish any right in this suit.

Because the said Dan. J. Toler had no authority to adjudicate a title from the said William Pettus to the said R. A. Lott; because counsel for the absent heirs of G. W. Davis was not notified of the application for the sale, or of the sale having been made, and because said sale was not ratified or consented to by the counsel for the absent heirs, as the law in force at that time required.

Defendants further object to the introduction of the patent, made an exhibit to plaintiff's petition, as evidence to support plaintiff's right to recover, because the patent purports to have been issued upon and by virtue of a certificate issued on the first day of January, 1839, while the record of the proceedings of the Probate Court of Washington county, offered in evidence by plaintiffs, show that the certificate petitioned to have been sold by the pretended administrator, William Pettus, was issued on the eleventh day of January, A. D. 1840, and that the said certificate has never been located and patented, but is now on file in the Probate Court of Washington county.

Defendant objects to the introduction of the pretended deed from R. A. Lott to John York, because the same is incompetent as evidence to support the plaintiff's right to recover in this suit, for all the reasons assigned as grounds against the introduction of the deed from Dan. J. Toler to the said R. A. Lott, and for all the reasons assigned as grounds of objection to the introduction of the patent made an exhibit to plaintiff's petition.”

The court below rejected said evidence, and adopted said reasons as the grounds of said rejection, and incorporated the same in plaintiff's b...