Sandoval v. Rosser

• Decision Date: 24 January 1894
• Citation: 26 S.W. 930
• Parties: SANDOVAL et al. v. ROSSER et al.
• Court: Texas Court of Appeals

26 S.W. 930

SANDOVAL et al. v. ROSSER et al.

Court of Civil Appeals of Texas.

January 24, 1894.

Appeal from district court, Wilson county; George McCormick, Judge.

Trespass to try title by Carlos Sandoval and others against B. F. Rosser and others. From a judgment sustaining exceptions to the petition, plaintiffs appeal. Reversed.

Denman & Franklin, for appellants. George Paschal, Wm. Aubrey, Simpson & James, Harwood & Harwood, and W. S. Smith, for appellees.

NEILL, J.

The appellants (plaintiffs below) brought this suit against appellees (defendants below) in trespass to try title, setting up in their petition their own title and that of appellees. To this petition appellees excepted generally and specially, which exceptions were sustained, and, appellants declining to amend, judgment was rendered against them, from which this appeal is taken.

The allegations in plaintiffs' petition are substantially that they and defendants claim title to the land in controversy under Jose Maria Rodriguez as a common source; that Rodriguez died on the 5th day of April, 1850, intestate, and being at the time owner in fee simple of the property in controversy; that he left neither widow nor descendants surviving him, but left as sole heirs his father, Mariano Rodriguez, and Fernando Sandoval, Carlos Sandoval, Manuel Yturri Castillo, Vincente Yturri Castillo, his nephews and nieces, they being children of his two deceased sisters; and that plaintiffs own the title of said Sandovals and Castillos. It is further alleged that defendants claimed title under said Mariano Rodriguez as follows: "On the 6th day of April, 1853, said Rodriguez, Fernando and Carlos Sandoval brought suit in the district court of Bexar county against W. H. Dangerfield, John La Place, and A. Thouvenin for the land in controversy, Mariano Rodriguez being at that time guardian of the estate of Manuel and Vicente Yturri Castillo." The petition in said suit is set out in full in plaintiffs' petition, and contains the following, among other, averments: "The petition of Carlos and Fernando Sandoval and Mariano Rodriguez, the latter of whom brings this suit in his own name and as guardian of Manuel Yturri and Vincente Yturri Castillo, minor children of Maria Josefa Rodriguez, late deceased, all of said county and state, most respectfully represent that Jose Maria Rodriguez, the son of said Mariano Rodriguez, and uncle of petitioners, was formerly seized and possessed of four leagues, one-half league, and 12 caballirias of land, being a portion of what was known as the `Luis Manchaca Grant' in said county, within the forks of the San Antonio and Cibolo rivers. That the said Jose Maria Rodriguez departed this life in the year 1850, intestate, and without issue, leaving petitioners his sole surviving heirs; the two first named being children of a sister, and the two minors the children of another sister, and the said Mariano, the father of the deceased. That your petitioners, by inheritance as well as by purchase and donation from the said Jose Maria during his lifetime, are the legal owners, and are justly entitled to the possession of said land; but nevertheless one Wm. H. Dangerfield, one John La Place, and one A. Thouvenin, all now residents of the state of Texas, have set up a pretended claim of title to said land, and the two first named, by urging a fraudulent and illegal claim to said land, have procured the same to be marked upon the county map in their respective names, thus constituting a cloud over the title of your petitioners to said land, and greatly depreciating its value by slandering the title of your petitioners; your petitioners not being able to sell or dispose of said land for one-third its value by reason of said pretended adverse fraudulent claim of said parties, — all of which is to the damage of your petitioners twenty thousand dollars. Your petitioners pray that said defendants may be cited, * * * and that your petitioners, each for the legal portion for which he may be considered entitled to by the court by inheritance or by purchase or donation derived from the said Jose Maria, may be declared the legal owner, or, in case the legal title be found in one, that he be declared the legal owner of said land," etc. That said petition was not subsequently amended or supplemented by any other pleading. That subsequently said suit was dismissed as to all the defendants except A. Thouvenin, who appeared, and answered by demurrer, plea of not guilty, and statute of limitations. On the 10th day of June, 1853, the case was tried in the district court of Bexar county, being submitted to the jury upon the following charge: "Gentlemen of the jury: The plaintiffs sue for the recovery of the land described in their petition, which they allege was claimed to their injury by the defendants. The defendants rely on the statute of limitations as a defense to the action. If from the evidence you believe that the defendant, or those through whom he claims, have held peaceable possession of the land claimed by him for five years before the commencement of this suit under deed or deeds duly recorded, cultivating, using, or enjoying the same, and paying taxes upon the same, you will find a verdict for the defendant. If you are not satisfied that the defendant cultivated, used, or enjoyed the land as stated, you will find for the plaintiffs." The jury brought in a verdict for plaintiff Mariano Rodriguez as follows: "We, the jury, find for plaintiff Mariano Rodriguez," and upon said verdict judgment was rendered by the court, "that the plaintiffs do have and recover of the defendant Arnold Thouvenin the upper survey or division of land set forth and claimed in plaintiffs' petition," etc.; "that the title of said Mariano Rodriguez, as against any claim or right in and to said land sued upon and claimed by the said Arnold Thouvenin, be, and the same is hereby, quieted, and that the deeds and conveyances set up and claimed under by said Arnold Thouvenin be, and the same are hereby, declared null and void and canceled; and that the said A. Thouvenin be, and the same is hereby, restrained and enjoined from setting up or pretending any claim or title to said land by virtue of any title, deed, or conveyance heretofore acquired by him. And, it moreover appearing to the court that the title to said land was exclusively vested in said Mariano Rodriguez, it is ordered by the court that there be judgment as of nonsuit against the plaintiffs the Sandovals and the guardian of the minors, Manuel Yturri and Vicente Yturri Castillo, and for their costs incurred in this proceeding." From this judgment A. Thouvenin appealed to our supreme court, and on the 28th day of December, 1859, that court reversed the judgment of the court below, and remanded the cause. 24 Tex. 468.

On the 22d day of March, 1857, Mariano Rodriguez, as sole petitioner, brought suit against J. B. La Place and W. H. Dangerfield in the district court of Bexar county for the land herein sued for. On the 11th day of July, 1872, said two causes were consolidated, and the following judgment rendered therein: "Thursday, July 11th, 1872. 1955. Mariano Rodriguez vs. J. B. La Place et al. 2838. Mariano Rodriguez vs. W. H. Danger-field et al. The death of the plaintiff, Mariano Rodriguez, being suggested, Maria Josefa Estrada y Rodriguez, the surviving wife and executrix of the last will and testament of the said Mariano, Maria de los Santos Rodriguez, Maria Antonia Rodriguez, and Juan Francisco Rodriguez, heirs and legatees of the said Mariano Rodriguez, are hereby made parties plaintiffs in the above-entitled two causes; the said Juan Francisco being a minor, and represented by Maria Josefa Rodriguez, his testamentary guardian. By agreement of the parties it is ordered by the court that the above two cases be, and they are hereby,...