Searcy v. Grant

• Decision Date: 29 October 1896
• Citation: 37 S.W. 320
• Parties: SEARCY et al. v. GRANT.
• Court: Texas Supreme Court

37 S.W. 320

SEARCY et al. v. GRANT.

Supreme Court of Texas.

October 29, 1896.

Error to court of civil appeals of First supreme judicial district.

Action by Sarah E. Searcy and others against George W. Grant. From a judgment of the court of civil appeals (35 S. W. 861) reversing a judgment for plaintiffs, they bring error. Reversed.

M. Y. Randolph and McKinney & Hill, for plaintiffs in error. S. M. Randolph, for defendant in error.

BROWN, J.

Sarah E. Searcy and her husband brought an action of trespass to try title to 320 acres of land in Walker county, patented to John J. Crowson, against George W. Grant. Grant filed a general demurrer to the plaintiffs' petition, and especially set up that he purchased the land in dispute from J. C. and S. R. Smith, who acquired the same from Nancy Denman, who, it was alleged, acquired the title to said land through a deed made by Wright Edmunson and William S. Crowson, administrator of the estate of J. J. Crowson, deceased. The date of the execution and recording of each one of the instruments of conveyance is specially alleged. In regard to the deed from Edmunson and Crowson to Nancy Denman it is also alleged that William S. Crowson stated therein that J. J. Crowson, in his lifetime, sold the land, and gave his bond for title, which statement, it is alleged, operated as an estoppel upon the plaintiff. Following this special plea is a general denial and a plea of not guilty, with special pleas of statutes of limitation, not necessary to state more particularly. The facts as found by the court of civil appeals are that the land was patented to John J. Crowson in the year 1846, after which, about October 22d, J. J. Crowson intermarried with one Martha Lindley. Some time early in 1847 John J. Crowson died. After his death, the plaintiff was born, which, in the natural course of things, must have been not earlier than the 22d of July, 1847. The land was the separate property of John J. Crowson, and the plaintiff Sarah E. Searcy was his only heir. She married A. J. Searcy in the year 1866. William S. Crowson, a brother of John J. Crowson, was appointed administrator of the estate of the deceased on March 29, 1847, and qualified on the same day. He afterwards filed an inventory and appraisement of property of the estate, which did not show any real estate. There was no order of sale of the land in controversy introduced in evidence. On the 29th day of March, 1847, the day on which William S. Crowson qualified as administrator, Wright Edmunson and William S. Crowson made a deed to the land in controversy to Nancy Denman, which contained the following recital: "I, Wm. S. Crowson, administrator of the estate of John J. Crowson, deceased, and the before-described land being the headright of said John J. Crowson, do hereby sanction the above conveyance, and fully join in the same, as the deceased had in his lifetime sold said land, and executed his bond for title to the same." It was acknowledged on the day of its execution, filed for record October 19, 1860, and recorded on the 23d day of that month. On the ____ day of December, 1858, Nancy Denman, by warranty deed, conveyed the land to J. C. and S. R. Smith, which deed was attached to the deed made by Edmunson and Crowson to Nancy Denman, and recorded with it. On March 29, 1869, J. C. and S. R. Smith executed a bond for title to George W. Grant, and afterwards, on the 1st day of March, 1875, made a deed to the land to Grant, which was recorded June 10, 1875. In 1849 the land had some improvements on it, and was known as the "Denman Place." It was occupied that year, but there was no proof of any occupancy after that until the year 1874. During the year 1869 Grant sold 45 acres of it to one Lewis, who occupied the part bought by him until 1879, when he reconveyed it to Grant. In 1880, Grant put a tenant on the land, who occupied it after that up to the time of the trial, with the exception of two intervals of about two years each. Grant paid all taxes on the land after he bought it in 1869. Sarah E. Searcy was born in Montgomery county, near the Walker county line, and has resided ever since in Montgomery and Madison counties. She married in Madison county in the year 1866. The record is silent as to whether she ever paid any taxes on the land, or ever made any claim thereto. The case was tried in the district court without a jury. The district court gave judgment in favor of Mrs. Searcy for the land, which, upon appeal to the court of civil appeals, was reversed, and rendered in favor of Grant. The court of civil appeals found as a fact that J. J. Crowson, in his lifetime, executed a bond for title to the land in controversy, and that Grant has an absolute title to the land. The plaintiffs in error object to the judgment of the court of civil appeals based upon the finding that the bond for title had been executed upon the following grounds: First. Because the defendant in the court below pleaded his title specially, and did not set up nor claim in his pleadings that J. J. Crowson, the grantee, ever made a title bond for the land to Wright Edmunson, or any one else; and therefore there was no pleading on the part of the defendant to admit of such conclusion from the proof. Second. Because the conclusion of the court to the effect that John J. Crowson executed, in his lifetime, a bond for title for the land to Wright Edmunson, is contrary to the evidence. Third. Because, if the trial court committed error in failing to find that a bond for title had been executed by the grantee, J. J. Crowson, such error was not assigned nor presented by the appellant in the court of civil appeals. The defendant in error relies upon the third assignment presented by him to the court of civil appeals to sustain the ruling of the court, which assignment is as follows: "The court erred in finding as matter of law that the deed from Wm. S. Crowson and Wright Edmunson of date the 29th day of March, 1847, passed no title from them to Nancy Denman, because said deed recited that J. J. Crowson had, in his lifetime, sold said land, and given his bond for title to same."

Article 1014 of the Revised Statutes of 1895 contains this language: "In all cases of appeal or writ of error to the courts of civil appeals the trial shall be on a statement of...