Ross v. Martin
| Decision Date | 02 April 1910 |
| Citation | 128 S.W. 718 |
| Parties | ROSS v. MARTIN et al.<SMALL><SUP>†</SUP></SMALL> |
| Court | Texas Court of Appeals |
Harry P. Lawther and F. D. Cosby, for plaintiff in error. E. P. Bryan, for defendants in error.
This is an action of trespass to try title to a lot on McKinney avenue, in the city of Dallas, brought by Deck Martin and Charley Rogers, against the defendant; plaintiffs claiming said lot by inheritance, as heirs, from Terrell and Seely Martin, husband and wife, deceased. The defendant Ross answered by general and special demurrers, not guilty, and specially, innocent purchaser and the statutes of limitation of three, five, and ten years. A trial resulted in a verdict and judgment in favor of Deck Martin for an undivided two-thirds interest in 100 feet of said land fronting on McKinney avenue, and for $163.88 rents; and in favor of Ross for the balance of said land and against his warrantors. From this judgment Ross alone appeals, as to the judgment in favor of Deck Martin, so we will confine ourselves to consideration of the controversy between Ross and Deck Martin.
Deck Martin and Charley Rogers are the grandchildren of Terrell and Seely Martin, deceased, and are their only surviving heirs. Rogers lost in the court below and did not appeal. It was necessary, in support of Martin's right of recovery, to show that the land in controversy was community property of Terrell and Seely Martin, as the legal title was in Seely Martin; it having been deeded to her by W. H. Gaston in 1887, and a cash consideration being expressed. In order to do this, after showing that Terrell and Seely Martin were husband and wife, a deed was offered in evidence wherein Terrell and Seely Martin conveyed in 1875, for a cash consideration expressed, a lot of land in the town of Dallas, and also proof was made by W. H. Gaston that the consideration for the conveyance to Seely Martin in 1887 was the conveyance to him of the lot by Terrell and Seely Martin in 1875.
To the admission of Gaston's testimony and said deed plaintiff in error objected that he had no notice of said land being community property, and assigns error therein. Upon the making of the conveyance by Terrell and Seely Martin to Gaston in 1875, the Martins moved on the property in controversy and built a house and resided there as man and wife until their deaths; Terrell Martin dying in April, 1886, and Seely Martin in 1891. Deck Martin and Charley Rogers were minors and orphans at the time and were living with and being supported by Terrell and Seely Martin and were constituent members of the family. The deed being made to Seely Martin after the death of Terrell Martin, she held the legal title and, as the plaintiffs had alleged that said property was community property, it was necessary to make proof thereof, to show their rights in the land, and it was not incumbent on plaintiffs to show that defendant was an innocent purchaser, but that burden was on defendant to defeat plaintiffs' right in the land. Johnson v. Harrison, 48 Tex. 257. This evidence was also admissible to show title in the Martins by the 10-year statute of limitation. McGregor v. Thompson, 7 Tex. Civ. App. 32, 26 S. W. 649; Improvement Co. v. Shelby, 17 Tex. Civ. App. 685, 41 S. W. 542.
To defeat the Martin title thus established, it was incumbent upon Ross to show that he was a purchaser of the land for a valuable consideration without notice of Deck Martin's title as an heir of the elder Martins, and this became a sharply contested issue in the trial of the case. Was Ross a purchaser of the 100 feet of land on McKinney avenue without notice? The court correctly instructed the jury on this issue, and the jury by their verdict has said that he was not. But this verdict is challenged by Ross as not being supported by the evidence.
The deed from Gaston to Seely Martin recited, "It is the same land on which she had lived since 1876." The affidavit of Ben. E. Tanner informed him that Seely Martin had a husband, Terrell Martin; but this affidavit stated Terrell had died without children. The deed from E. Tanner to Ben. E. Tanner, a link in Ross' chain of title, recited, "But there are excepted out of this conveyance the portion of said land by me this day deeded to R. G. Tanner and also an undivided one-half interest inherited by the heirs of Seely Martin, other than Tom Banks, in the 100-foot lot off of the end of said lot fronting on McKinney avenue, which I do not own." The inventory and appraisement of the estate of Seely Martin, which was approved by the court, recited, "one lot on McKinney avenue and Cemetery avenue, having been the homestead of Seely Martin, estimated value of same, $250.00." It was shown that Terrell and Seely Martin lived in Dallas as early as 1865, which was then a small town, until their deaths. They were well known. They worked around town as servants for many white families, among them the Ross family, and they would frequently have with them their son, Sim Martin, the father of Deck, and their grandchild, Charley Rogers. Ross knew Sim Martin. They played together when children. These facts, we think, were sufficient to warrant the jury to find that Ross was put...
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