Rice v. St. Louis, A. & T. Ry. Co.

• Decision Date: 07 February 1894
• Citation: 24 S.W. 1099
• Parties: RICE v. ST. LOUIS, A. & T. RY. CO. et al., (CLEVELAND et al., Interveners.)
• Court: Texas Court of Appeals

24 S.W. 1099

RICE v. ST. LOUIS, A. & T. RY. CO. et al., (CLEVELAND et al., Interveners.)

Court of Civil Appeals of Texas.

February 7, 1894.

Appeal from district court, Coryell county; C. K. Bell, Judge.

Action of trespass to try title by George N. Rice against the St. Louis, Arkansas & Texas Railway Company and others, in which Lafayette Cleveland and others intervened. From a judgment for defendants, plaintiff appeals. Affirmed.

Duffie & Duffie and Davis & Harris, for appellant. Sam H. West and Clark, Dyer & Ballinger, for appellees.

Statement of the Case.

FISHER, C. J.

This is an action by the appellant against the appellees in the form of trespass to try title to 1,061 acres of land out of the Mary Hawley survey in Coryell county. Lafayette Cleveland, S. C. Campbell, D. C. Russell, and Emma Russell intervened in the cause, and claimed title to the land, and adopted as pleadings the allegations of the plaintiff's petition. Appellees Coleman, Hood, Baker, Holbrook, Smith, and Williams pleaded limitation, not guilty, and by metes and bounds the lands that each was entitled to, and averred that they each purchased the lands as described from Lafayette Cleveland, through his agent and attorney in fact, Wharton Branch, and that at the time the said Wharton Branch owned in his own right the superior equitable title to one-half of the land. The railway company appellee only pleaded a general denial and plea of not guilty. A jury being waived, the court below rendered judgment that the plaintiff and interveners take nothing by their actions, and that the appellees go hence with their costs. From this judgment the plaintiff alone appeals.

Findings of Fact.

This court finds the following as the facts in this case: (1) The plaintiffs introduced certified copy of judgment of the district court of Coryell county, rendered on October 2, 1880, setting apart the lands in controversy in this suit to Lafayette Cleveland, in a cause wherein said Cleveland and his two brothers were the sole parties. (2) That Lafayette Cleveland died intestate in December, 1878, leaving surviving him his widow, Ava Cleveland, and sons, Henry Cleveland, Daniel Cleveland, J. R. Cleveland, and Lafayette Cleveland, Jr., and daughters, S. C. Campbell, M. C. Russell, and Emma Russell; and that S. C. Campbell married R. W. Campbell in 1872, and has remained his wife since; and that M. C. Russell married D. C. Russell in 1876, and has so continued since; that Emma Russell married John A. Russell in 1885, and that he died in 1888; that Lafayette Cleveland, Jr., is only 13 years old; that J. R. Cleveland attained his majority on February 1, 1889; that Daniel Cleveland attained his majority in June, 1885. (3) The plaintiff introduced deeds from all of the aforesaid children of said Lafayette Cleveland and from his widow, executed February 2, 1889, conveying him the land in controversy, except from Lafayette Cleveland Jr., from whom he had no conveyance. (4) For the purpose of proving common source the plaintiff introduced as evidence a power of attorney from Lafayette Cleveland to Wharton Branch, dated August 12, 1876, and authorizing him to convey the lands in controversy, and he introduced other deeds executed by said Wharton Branch, in 1882, as attorney in fact for said Lafayette Cleveland, to the defendants, or to those under whom they claim, to the lands in controversy. (5) The interveners introduced the same evidence as the plaintiff. (6) The defendants introduced in evidence a patent from the state of Texas to Mary Hawley to the land in controversy, dated in 1853; and also introduced a deed, duly acknowledged, from Mary Hawley to one John Morgan, to said land, dated and acknowledged January 15, 1859, recorded in 1873 in Coryell county. (7) The defendants also introduced in evidence deeds from Lafayette Cleveland, by his attorney in fact, Wharton Branch, executed and recorded in 1882, by virtue of the power of attorney shown in plaintiff's evidence, to themselves, or to those under whom they claimed; and they established that Wharton Branch, at the time of the execution of the said deeds, owned an undivided half interest in said lands by purchase from Lafayette Cleveland. (8) The defendants T. V. Hood, G. W. Coleman, and John. T. Holbrook proved title by limitation to the lands claimed by them in severalty, and described in their original answer, filed August 8, 1889, to which reference is made, as against the interest of Ava Cleveland, Henry Cleveland, and Emma Russell in and to said lands; and they each showed that during his possession he had in...