Ramirez v. Garza

• Decision Date: 04 February 1925
• Docket Number: (No. 7280.)
• Citation: 269 S.W. 1102
• Parties: RAMIREZ et al. v. GARZA et al.
• Court: Texas Court of Appeals

Page 1102

269 S.W. 1102

RAMIREZ et al. v. GARZA et al.

(No. 7280.)

Court of Civil Appeals of Texas. San Antonio.

February 4, 1925.

Rehearing Denied March 11, 1925.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Suit by Gumersindo Ramirez and others against Antonio Garza and others. From the judgment rendered, plaintiffs appeal; defendants assigning cross-error. Reversed and remanded.

Hicks, Hicks, Dickson & Bobbitt, of Laredo, and R. D. Wright, of San Antonio, for appellants.

A. C. Hamilton and S. T. Phelps, both of Laredo, for appellees.

COBBS, J.

This suit was filed to partition certain land situated in Webb county, being porcion No. 4, containing 7,111 acres of land, more or less. Appellants claim to be the owners of 1,525 acres undivided in said porcion in addition to an undivided 640 acres of said porcion to which their title was undisputed. It was agreed in the trial court that Modesto Garza owned 1,525 acres undivided interest in said porcion prior to his death, which occurred February 9, 1881. He devised his property to his two grandsons Luis and Pamfilo Gonzales, minors. Appellants claim title by purchase from the substituted testamentary executor of the estate of Modesto Garza, and from the legal guardian of the said two minor children. Appellants also claimed possession and title by virtue of the statute of limitation of five and ten years and stale demand. Appellants are heirs of Geronimo Garcia, who purchased the land from the executor and guardian. Appellees claim title as heirs of Luis and Pamfilo Gonzales, the grandsons of Modesto Garza.

The cause was tried on June 11, 1924, without a jury; judgment was rendered first upon the agreement between plaintiffs and defendants of date November 5, 1923, then that appellants have 640 acres undivided interest, and in addition thereto a recovery from interveners of 521 acres to which the court held appellants had established title under the ten years' statute of limitations, and that appellees have judgment for an undivided interest of 1,004 acres, being the amount claimed by them, 1,525 acres, less the 521 acres awarded to appellants under the ten-year statute of limitations. This cause was, by reason of the agreement of all parties save appellants and appellees, limited to a trial of the issue as to whom belonged an undivided interest of 1,525 acres in the porcion. Appellees claimed 1,525 acres, undivided, in said porcion as the heirs of Luis and Pamfilo Gonzales, who were children of San Juana Gonzales, a daughter of Modesto Garza, whom it was agreed owned 1,525 acres out of said porcion, the amount being based on the theory that the porcion contained 7,111 acres of land.

The trial court admitted all testimony offered, regardless of objections thereto, reserving to himself the prerogative to reject inadmissible testimony in his final consideration of the case in reaching a judgment. Wherefore, in discussing this case and analyzing the testimony in the record, we must consider that the trial court, in order to reach the judgment rendered, considered only such testimony as was legally admissible, and found all facts necessary to sustain that judgment. The trial court found that the appellants owned in common with the other plaintiffs and defendants in the suit 640 acres of land. In their brief, on pages 30 and 31, appellants set forth that this undivided interest of 640 acres was acquired by Geronimo Garcia, the ancestor and source of title of appellants, by two deeds; one from Jesusa Garcia and husband, dated March 19, 1890, filed September 8, 1890, and the other from Jose Nieves Garza, dated March 13, 1888, and filed March 15, 1889. No contention is made by appellees that these two deeds did not convey good title to the undivided interest of 640 acres, but they simply wish to point out that at the time these deeds were taken the ancestor of appellants had had no other deed for a period of ten years. The trial court found that the Mexican deed, which was never filed or recorded in Texas until the pendency of this suit, was inoperative to convey real estate in Texas, and that the facts surrounding its execution and attempted to be brought home as notice to appellees, as well as other testimony offered, did not estop them from claiming their inheritance of 1,525 acres in the porcion. The trial court held that the deed from Benigno Saenz and Narcisco Gonzales to Geronimo Garcia, dated February 21, 1881, and recorded in Zapata county, Tex., conveyed no land. The trial court found that the appellants were the owners by ten years' limitation of three tracts of land out of the porcion aggregating 521 acres and described by metes and bounds in the judgment, charging this acreage against the 1,525 acres found to be owned by appellees, leaving the latter with an undivided interest of 1,004 acres.

Appellants' first proposition attacks the ruling of the trial court in holding that the deeds under which appellants hold title from the executor and guardian of Luis and Pamfilo Gonzales were void and passed no title, the undisputed facts showing an express and implied adoption and ratification of said sale by said minors after they arrived at majority; that a direct benefit resulted from such sale to the estate by reason of the fact that the money paid for the conveyances was used to discharge liens against the estate; that after such sale appellees lived within 15 miles of said property and asserted no claim or ownership and paid no taxes; that Geronimo Garcia and his heirs continued in adverse possession thereof, made permanent and valuable improvements on the land, asserted claim thereto, and paid all taxes for a period of 40 years; and that it would be inequitable to permit appellees to recover the land, because they do not attempt to do equity by tendering or offering to refund or pay to appellants the consideration paid for the land that went to discharge incumbrances against the estate, which inured to their benefit.

This assignment is on the very border of multifariousness. The sale of the land was made by the substitute executor and guardian for the purpose of realizing funds with which to discharge valid liens on property belonging to the estate, and when applied to that purpose, whether they are minors or not, they cannot recover the property without returning the consideration received.

See opinion on motion for rehearing, in case of John A. Bitter v. County of Bexar, decided by this court Nov. 19, 1924, not yet [officially] published, 266 S. W. 224. North-craft v. Oliver, 74 Tex. 162, 11 S. W. 1121; Halsey v. Jones, 86 Tex. 488, 25 S. W. 696; Donaldson v. Meyer (Tex. Com. App.) 261 S. W. 369; Ry. Co. v. Blakeney, 73 Tex. 180, 11 S. W. 174; Harrison v. Ilgner, 74 Tex. 86, 11 S. W. 1054; Stephenson v. Marsalis, 11 Tex. Civ. App. 162, 33 S. W. 383.

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