Read v. Allen

• Decision Date: 03 February 1882
• Docket Number: Case No. 1270.
• Parties: R. N. READ ET AL. v. M. A. R. ALLEN ET AL.
• Court: Texas Supreme Court

56 Tex. 182

R. N. READ ET AL.

v.M. A. R. ALLEN ET AL.

Case No. 1270.

Supreme Court of Texas.

Feb. 3, 1882.

APPEAL from Houston. Tried below before the Hon. W. D. Wood.

R. N. Read et al. brought this suit in Houston county on August 26, 1880, against appellees Mrs. Walker and Mrs. Allen, for an undivided half interest in the Aughenbaugh league of land situated in that county, and to revise, limit or set aside in part a judgment for the league recovered in November, 1878, by appellees Walker and wife alone, against appellants (except Mrs. Thompson and Mrs. Jeffus, who were not parties), each appellant asserting claim to separate portions of the league described by metes and bounds. Appellants Mrs. Thompson and Mrs. Jeffus sued for the whole of two tracts of two hundred and fifty and one hundred and seventy-four and a half acres claimed by them respectively; the other appellants for an undivided one-half interest in the land. Appellees Walker and Allen, on September 22, 1880, answered by general demurrer, and assigned special exceptions as follows: 1st, that the petition showed that the matters set up therein were res judicata between the parties; 2d, that the petition sought to review a judgment of the district court and supreme court, without stating sufficient grounds for such a review; 3d, that the petition showed that plaintiffs based their claim on limitation; that none of the periods of limitation had expired against either of defendants, and that the claim of limitation had been adjudicated; and 4th, that the plaintiffs Mrs. Thompson and Mrs. Jeffus are estopped by the suit and judgment against their husbands.

At the trial, September 23, 1880, the exceptions of Walker and Allen were sustained by the court, and final judgment rendered against all the appellants, Read et al. Appellants excepted to the action of the court, and gave due notice of appeal.

The petition alleged that two of the plaintiffs, Mrs. Thompson and Mrs. Jeffus, were the legal and equitable owners of the two tracts claimed by them respectively, part of the Aughenbaugh league situated in Houston county, and that the other plaintiffs were the legal and equitable owners of an undivided half interest in the balance of the league, and the tract claimed by each plaintiff was described by metes and bounds; that the defendants had wrongfully ousted plaintiffs, and had taken possession of the land sued for by virtue of a writ of possession issued out of the district court of said county on a judgment rendered therein in November, 1878, and affirmed by the supreme court in March, 1880, in a suit which had been instituted on the 12th day of March, 1873, by Anna Perry, a minor, by her guardian, Samuel W. Fisher, against appellants Read et al. (except Mrs. Thompson and Mrs. Jeffus), for an undivided half interest in the said league; that the original petition of said plaintiff was in the ordinary form of an action of trespass to try title, and did not in any manner assert the right of defendant Allen or any other person as joint owner; that in September, 1873, said minor married L. D. Walker, and thereafter the suit was prosecuted by them; that on November 7, 1878, Walker and wife, by their first amended original petition filed that day, for the first time asserted that defendant Allen was the owner of the other half, and prayed that said Allen be made a party; that on the same day, and by the attorneys of Walker and wife, a plea or petition was filed for defendant Allen, asking that she be made a party plaintiff, and asserting claim as joint owner with Walker and wife, which interest she claimed as surviving widow and heir of one W. S. Allen; that said amended petition and plea were filed on the evening before the cause was called for trial, and constituted the first notice plaintiff ever had of the claim of defendant Allen; that on the morning of the next day, November 8, 1878, the cause was called for trial, and the defendants (appellants) Read et al. filed an application for a continuance on the grounds, among others, of surprise by reason of the filing of said plea and amended petition, and because of the absence of material witnesses by whom they could establish their title to said land by limitation; that the court ruled that unless said Allen should withdraw her said plea the cause would be continued on said application; whereupon the said plea was by her said attorneys, also the attorneys for the plaintiffs, withdrawn in open court, and the cause proceeded to trial with Walker and wife as sole plaintiffs, and resulted in a verdict for plaintiffs, the jury also finding that the claim of defendants for improvements offsetted all damages; that judgment was rendered for Walker and wife for said league and costs of suit, the judgment reciting that plaintiffs sued as joint owners with defendant Allen; but afterwards the judgment was amended by the court so as to omit said recital, whereby it was shown that the alleged title of said Allen was not litigated in said suit; that defendants appealed from said judgment, but the same was affirmed by the supreme court in March, 1880; that in the transcript of the record filed in the supreme court on said appeal the original petition was omitted, and in lieu thereof was copied plaintiffs' said first amended original petition, as required by the rules of the supreme court; that on the trial of the suit no issue was involved or submitted to the court or jury in reference to said Allen's alleged title or interest in said land; that no proof was made or offered as to such title or interest, or of the death of said W. S. Allen, or heirship of defendant Mrs. Allen; that the evidence adduced on the trial was wholly with reference to the title of Walker and wife to an undivided half of said league, and the defenses set up thereto being pleas of not guilty, purchasers and possessors in good faith, and limitation of three, five and ten years; that defendants in said suit did not offer any evidence of their titles as against defendant Allen, as her claim had been expressly ruled out by the court and withdrawn in open court; and defendants believed and so were advised by their counsel that such evidence would not be admissible because of said ruling and withdrawal; that said Allen's deceased husband never in fact owned the land or any part of it; that it was pretended by her that said W. S. Allen acquired a half interest in the league in 1835 by purchase from J. J. Aughenbaugh, the original grantee, but in fact said W. S. Allen was a non-resident alien, and was never a resident of Texas, or of Coahuila and Texas, or of the republic of Mexico; that no deed to said Allen was ever recorded in Houston county; that said Allen and no one for him ever took possession of the land, or paid any taxes thereon; that Walker and wife do not now claim and have never claimed but an undivided half interest in said league; that under said writ of possession Walker and wife were placed in possession of said league, and they have admitted defendant Allen in possession as joint owner with them, each asserting and holding an undivided half interest in the same; that appellants are innocent purchasers of said land for valuable considerations paid, and without notice of any adverse title or claim, and they set up the statute of limitations and peaceable and adverse possession of three, five and ten years before November 8, 1878, as against defendant Allen, pleading under the statute fully; that at the institution of said suit said Anna Perry was a minor and no limitation ran against her, and defendants could not successfully maintain limitation against her, but defendant Allen was under no disability whatever; that under the ruling of the court, and the act of said Allen and of the attorneys of herself and Walker and wife, whereby said Allen's plea was expressly withdrawn, the defendants offered no proof as against her, as her title was not in issue after said withdrawal; that if said title was in issue, or the right of Walker and wife to the whole of the league, the same was a surprise to defendants occasioned by said ruling and withdrawal, and defendant acted and relied on same as withdrawing from issue everything but the right of Walker and wife to an undivided half interest in said league; that after said Allen's plea was withdrawn, it was the understanding of defendants and their attorneys that the trial would proceed with the issue whether Walker and wife were to be entitled to recover an undivided half interest, and not the title or possession of the whole, which understanding was induced by said withdrawal, and acted and relied on by defendants in the trial of said cause.

The petition had annexed as exhibits copies of the original petition, amended petition, plea of Mrs. Allen, the judgment of the court, and order amending the judgment.

The petition also alleged that the two tracts claimed respectively by Mrs. Thompson and Mrs. Jeffus as their separate property were conveyed to them by deeds of gift from their parents long before the institution of said suit; and at the institution of the suit they were in the actual possession of those tracts, claiming under deeds of gift which were then duly recorded, all of which was known to defendants Walker & Allen at the time of the institution of said suit; yet neither Mrs. Thompson or Mrs. Jeffus was ever made a party to said suit or had any legal notice of the same; that they had been dispossessed under said judgment and writ of possession. Mrs. Thompson and Mrs. Jeffus set up their titles fully in the petitions, and prayed for judgment for the whole of the land claimed by them; and the other appellants prayed that said judgment be limited or set aside in part and for judgment for an undivided half of the tracts claimed by them respectively, and for partition as between them and Walker and wife, also for costs, and they prayed for general relief.

The first special...