Reeder v. Eidson

• Citation: 102 S.W. 750
• Parties: REEDER et al. v. EIDSON.
• Decision Date: 24 April 1907
• Court: Court of Appeals of Texas

102 S.W. 750

REEDER et al. v. EIDSON.

Court of Civil Appeals of Texas.

April 24, 1907.

Rehearing Denied June 5, 1907.

Appeal from District Court, Coke County; J. W. Timmins, Judge.

Trespass to try title by M. J. Eidson against P. D. Reeder, in which defendant, Reeder, impleaded R. K. Wylie. From a judgment against defendant Reeder for the land, and in his favor against R. K. Wylie, they both appeal. Reversed and rendered.

Patterson & Merchant, R. B. Truly, C. H. Willingham, and Hill & Lee, for appellants. Brightman & Upton, for appellee.

KEY, J.

Appellee brought this suit of trespass to try title against P. D. Reeder to recover two tracts of land situated in Coke county, and containing 160 acres each. The defendant Reeder impleaded R. K. Wylie on his warranty, and both defendants filed a general denial and plea of not guilty. Reeder also pleaded limitation and improvements in good faith. The trial court rendered judgment against Reeder for the land, and in favor of Reeder against Wylie on his covenant of warranty for $449, and both Reeder and Wylie have appealed and assigned errors.

One of the surveys is described in the plaintiff's petition as the Mrs. V. E. Thomas pre-emption survey No. 1, and it is further described by metes and bounds. The other survey is described by metes and bounds, and as being the land granted to D. E. Holloway by the state of Texas on the 11th day of July, A. D. 1887, by patent No. 626. The plaintiff put in evidence a regular chain of title from the government to himself, which showed that the first survey was granted by the state to Mrs. V. E. Thomas as a homestead pre-emption, and that the other survey was in like manner granted to D. E. Holloway as a homestead pre-emption. The defendants placed in evidence a judgment of the district court of Runnels county against the plaintiff and certain other defendants for $2,109.25, dated March 17, 1893. They then offered to prove by the deposition of W. L. Towner, a disinterested witness, that on the 4th day of January, 1897, he, as clerk of the district court of Runnels county, issued an execution upon the judgment referred to to Coke county, and thereafter received such execution with a return thereof from the sheriff of Coke county. That the return was signed by L. B. Murray, sheriff of Coke county, Tex. That, after diligent search in the office, he was unable to find the execution or the return thereon. That the execution docket in the office contains the following: "Sheriff's Return. Came to hand on the 4th day of January, 1897, at 10 o'clock a. m., and executed on the 5th day of January, 1897, by levying on 160 acres of land situated in Coke county, Tex., known as the D. E. Holloway grant, abstract No. 194, also 160 acres, original grantee Mrs. V. E. Thomas, abstract No. 689, situated in county and state aforesaid, and on the 5th day of January, 1897, by advertising." Defendants offered to make substantially the same proof as to the loss of the execution and return and entry on execution docket by the deposition of R. A. Terry, the present clerk of the district court of Runnels county. They then offered in evidence a sheriff's deed, executed by L. B. Murray, sheriff of Coke county, Tex., on the 3d day of February, 1897, conveying to the defendant R. K. Wylie, in consideration of $184 cash, certain land described as follows: "First. Survey No. 1, abstract No. 194, original grantee, D. E. Holloway, purchased at 65¢ per acre, containing 160 acres. Second. Survey No. 1, abstract No. 689, original grantee, Mrs. V. E. Thomas, containing 160 acres, at 50¢ per acre—both tracts aggregating a total of $184." This deed was in the usual form of sheriffs' deeds for property sold under execution, and recites the fact that the land was levied upon and sold by virtue...