Puckett v. McDaniel

• Decision Date: 28 November 1894
• Citation: 28 S.W. 360
• Parties: PUCKETT et al. v. McDANIEL et al.
• Court: Texas Court of Appeals

28 S.W. 360

PUCKETT et al. v. McDANIEL et al.

Court of Civil Appeals of Texas.

November 28, 1894.

Error from district court, McLennan county; L. W. Goodrich, Judge.

Action by Layton C. Puckett and others against J. B. McDaniel and others. From the judgment, plaintiffs bring error. Affirmed.

Scarborough & Rogers, for plaintiffs in error. Jones, Kendall & Sleeper and G. R. Bryce, for defendants in error.

Statement of the Case.

FISHER, C. J.

Layton C. Puckett and Belle Hamilton, joined by her husband, sued the defendants in error in trespass to try title, and for partition of 116 acres of land; plaintiffs in error claiming an undivided one-eighth interest in the land, as heirs of their deceased father, Layton F. Puckett. Defendant McDaniel filed disclaimer, and judgment was entered for plaintiffs. As against him, defendant Bryce filed (1) demurrer; (2) denial, and plea of not guilty; (3) limitation of five years; (4) set out part claimed by McDaniel by metes and bounds, and the part claimed by himself by metes and bounds, and alleged partition between them, setting out the fact that his vendor owned an undivided one-fourth interest, and that McDaniel had acquired the one-fourth belonging to plaintiffs' father, and that, in the division, McDaniel claimed to own three-fourths interest. And Bryce prays, in event of recovery by plaintiffs, that they be required to carve their recovery out of the portion allotted to McDaniel in the partition between him and Gurley, Bryce's vendor. Plaintiffs replied to the plea of limitation by allegation of coverture of Belle Hamilton, and minority of L. C. Puckett. On trial, plaintiffs established their title to an undivided one-eighth of the land, and plaintiff L. C. Puckett recovered; but the court held that Belle Hamilton was barred by limitation of five years, and refused to grant partition to L. C. Puckett on the ground that the proof showed some vendees of McDaniel to be in possession of parts of his tract, that were not parties to the suit.

Findings of Fact.

We find the following as the facts in the case, which is all of the evidence in the record: Plaintiffs introduced deed from W. B. Loftin to Layton F. Puckett and E. J. Gurley to the land in controversy, of date of 12th day of January, 1863, conveying to each an undivided one-fourth interest. Testimony of Mrs. J. A. Boggess: That she is the mother of plaintiffs Layton C. Puckett and Belle Hamilton; that they are the children of Layton F. Puckett, deceased, her former husband, and the only children of said Puckett; that Layton F. Puckett died in 1867; that plaintiff L. C. Puckett was born April 11, 1866; that Belle, now Mrs. Hamilton, was born in 1864, and married March 16, 1881; that she was married to her present husband, M. M. Boggess, in the year 1872. Plaintiffs traced defendants' title to common source. Defendants offered in evidence a deed from defendant J. B. McDaniel to E. E. McDaniel for the 98.40 acres, executed and duly recorded before the institution of this suit. Defendants also read in evidence deed from E. E. McDaniel to ____ Jones for part of the 116.26 acres, which was executed and duly recorded before the institution of this suit. Defendants offered deed of trust, of date 30th day of April, 1877, signed by B. P. Loftin, M. M. Boggess and wife, J. A. Boggess, to the land in controversy, to J. E. Bonner, trustee. Also, Trustee Bonner's deed to the same, of date 20th day of June, 1878, to J. B. McDaniel. Also, partition deed between J. B. McDaniel and E. J. Gurley to the land in controversy, dated 23d December, 1879, and recorded 12th day of January, 1880, by terms of which deed E. J. Gurley took the 17.86 acres described by metes and bounds in the pleadings of defendant Bryce, and claimed by him, and J. B. McDaniel took 98.40 acres described by metes and bounds in the pleadings as his. Defendant Bryce offered proper legal conveyances from E. J. Gurley to J. H. Sears, of date 29th December, 1879, and duly recorded 7th January, 1880, and deed from J. H. Sears to G. R. Bryce, dated 7th February, 1881, duly recorded 8th February, 1881, each deed describing by metes and bounds the 17.86 acres deeded to Gurley. E. J. Gurley testified that the tract of 114 acres in controversy had been continually occupied since 1878; that there was at time of partition between himself and McDaniel about 10 or 12 acres under fence and in cultivation; that in the partition he got the land in cultivation; that the survey was made on the ground; marked off his portion as described in his deed; that when he sold to J. H. Sears he (Sears) took immediate possession, and proof showed continued possession since by tenant, who lived on the 17 acres, and payment of taxes from that time to the filing of the suit. E. J. Gurley testified that, at time of partition between himself and McDaniel, they both thought that McDaniel had acquired all title of Puckett, and that no one but themselves were interested; that there was no disposition on...