Scofield v. Douglass

• Decision Date: 09 January 1895
• Citation: 30 S.W. 817
• Parties: SCOFIELD et al. v. DOUGLASS et al.
• Court: Texas Court of Appeals

30 S.W. 817

SCOFIELD et al. v. DOUGLASS et al.

Court of Civil Appeals of Texas.

January 9, 1895.

Appeal from district court, Hill county; J. M. Hall, Judge.

Action by J. S. Scofield and others against Mrs. P. W. Douglass and others for partition of land, and for an interest in a certain stock of horses. From a judgment for plaintiffs for their interest in the land, that J. S. Scofield take nothing by his suit, and against plaintiffs on their claim for the horses, plaintiffs appeal. Affirmed as to all the defendants except J. S. Scofield, and reversed as to him. Rehearing denied.

McKinnon & Carlton, for appellants. S. C. Upsham and Tarlton & Morrow, for appellees.

RAINEY, J.

This suit was filed in the district court of Hill county August 8, 1890, and the amended petition September 9, 1890, by J. S. Scofield, for himself and as next friend of his children (Annie, Major, Maggie, and Houston Scofield, who are minors, and John Scofield, who, since the filing of the original petition, has arrived at the age of 21 years), against P. W. Douglass and her husband, J. M. Douglass, Lyle Scofield, and Willie Scofield, for partition of 220 acres of land of the James King survey, in Hill county, and an interest in a certain stock of horses; the said land and stock of horses being the estate of Sam Scofield, deceased, who was a son of J. S. Scofield, plaintiff; the other plaintiffs being the children of J. S. Scofield, and half brothers and sisters of Sam Scofield, deceased, and the defendant P. W. Douglass being the widow of W. R. Scofield, who was a whole brother of Sam Scofield, and the other defendants, Lyle and Willie, being the children of W. R. Scofield, and J. M. Douglass being the present husband of P. W. Douglass. It was alleged that Sam Scofield died on July 13, 1880, leaving the said land and horses as his estate, and plaintiffs and defendants as his heirs at law. It was further alleged that, since the marriage of P. W. Douglass, with J. M. Douglass, she and her said husband did, on January 1, 1890, appropriate to their own use and benefit the entire tract of 220 acres of land, and have enjoyed the entire rents and use thereof; the rents being of the reasonable value of $600 per annum, — the said land being in a state of cultivation. It was further alleged that the stock of horses (45 head), of the value of $1,350, were permitted to remain in the care, possession, and custody of W. R. Scofield during his life, and after his death with his widow, without a division, the interest of plaintiffs during all that time being recognized and admitted by W. R. Scofield, and after his death by his widow, P. W. Douglass; that on or about August 1, 1890, J. M. Douglass, acting for his wife, and with the consent of plaintiff J. S. Scofield, acting for the other plaintiffs, took the entire stock of horses from the state, to sell the same, agreeing to account for the interest of plaintiffs at $40 per head, but that, since taking said horses from the state, they, the said J. M. and P. W. Douglass, refuse to account to plaintiffs for their interest in the same. Defendants' amended answer was filed November 3, 1890, and answer of Lyle and Willie Scofield, by J. G. Abney, guardian, filed March 23, 1891. The issues upon which the cause went to trial were the 10-years statute of limitation as to the land, and a claim of purchase of the horses by W. R. Scofield from Sam Scofield during his lifetime, and the statute of limitation of 2 years. Plaintiffs' supplemental petition was filed March 23, 1891, in which was pleaded minority in bar of limitation for all the plaintiffs except J. S. Scofield. There was more than one trial, but at the spring term, 1893, of the district court, the cause was submitted to a jury on special issues. The jury returned answers, and upon their findings the court entered judgment. The effect of the judgment is that plaintiffs and John Scofield recover their interest in 220 acres of land, as sued for, and their interest in rents, which was assessed to be $408; that J. S. Scofield take nothing by his suit; and that none of the plaintiffs recover on account of their claims for the horses; and the costs of court adjudged partly against all parties. March 20, 1893, J. S. Scofield et al., plaintiffs, filed their motion for new trial, which on March 22, 1893, was overruled, and notice of an appeal was given.

The first and second assignments of error are not presented by appellants in their brief.

The third, fourth, and fifth assignments complain of the court in admitting, over objections, certain testimony relating to the sale of the horses by Sam Scofield, before his death, to his brother W. R. Scofield; one of the objections being that said horses were running on the range, that no bill of sale was given, and testimony as to the verbal transaction of sale was not admissible. We are of opinion that under the facts of this case the sale of the horses did not come within the purview of article 4564, Rev. St., which requires a written bill of sale in order to pass title. Besides, when the sale was made, W. R. Scofield immediately reduced the horses into possession, and was claiming them as his own, and exercising dominion over them, at the time of the death of Sam Scofield, and continued to hold adverse possession of them until his death, which was more than two years after he first came into possession of same. We are of opinion that plaintiffs' claim to the horses was barred by limitation, and the verdict and judgment of the court is correct as to that property. The judgment is also correct in allowing plaintiffs Annie, Major, Maggie, and Houston and John Scofield to recover an interest in the land. But, as to J. S. Scofield, we think the court erred in failing to give some of the special instructions asked by plaintiffs' counsel.

The testimony shows that Sam Scofield died on July 13, 1880, owning the tract of land in controversy, all of which was under fence, and about two-thirds in cultivation, which was occupied by tenants. Immediately after Sam Scofield's death, some of the witnesses state, W. R. Scofield claimed that Sam had given him his property, and he (W. R. Scofield) assumed control of the same at once. The tenants on the land testify that all the rent for the year 1880 was paid to W. R. Scofield, while J. S. Scofield states that he collected some of the rents for that year. At the time of Sam Scofield's death, he and W. R. Scofield were living with their father, J. S. Scofield. On July 29, 1880, W. R. Scofield married, and carried his wife to his father's house, where they lived until the spring of 1881, when they moved on the land in controversy; and the same has been held and enjoyed by W. R. Scofield and his wife until his death, in 1887, and since that time by his widow, without interruption, until the bringing of this suit. Mrs. P. W. Douglass, relict of W. R. Scofield, testified that soon after Sam's death (she thinks, on the Friday or Saturday after the 29th day of July, 1880, which was on Tuesday) she told J. S. Scofield that W. R., her husband, had given her the land in controversy, and he replied, "All right." This is...