Slaton v. Singleton

• Decision Date: 04 December 1888
• Citation: 9 S.W. 876
• Parties: SLATON v. SINGLETON <I>et al.</I>
• Court: Texas Supreme Court

9 S.W. 876

SLATON v.SINGLETON et al.

Supreme Court of Texas.

December 4, 1888.

Appeal from district court, Wichita county; P. M. STINE, Judge.

Partition proceedings brought by W. D. Slaton against E. S. Singleton and others.Plaintiff appeals.

L. C. Barrett, for appellant.Robert E. Huff, for appellees.

WALKER, J.

Slaton appeals from a judgment and decree in which he is allowed, in partition, one-eighth interest in certain lands, when he insists he was entitled to one-fourth interest.The lands were granted in right of heirs of R. J. Scott, a soldier who fell at Goliad in 1836, unmarried, without issue, and intestate.His parents, John and Sarah Scott, resided in Tennessee, and were his heirs.Sarah Scott died in 1842, leaving four children.The father, John Scott, died in Tennessee, in 1865, the four children surviving.It appears in the record that John Scott left a will, which in 1865, was probated in Tennessee, (in what county is not shown,) by which his interest in these and other Texas lands, to the extent of one-fourth, was devised to the children of Mary Yell Cannon, who, it seems, would have inherited one-fourth had he died intestate.This will, with its probate, was duly recorded in the several counties where the lands were situated, in 1887, and, it seems, under the act twentieth legislature, of March 23, 1887, (Sayles, Civil St. art. 548a,)July 27, 1883, Mary Yell Cannon conveyed by warranty deed her undivided one-fourth interest in two of the tracts of land, and June 27, 1884, a like interest in the other tract in controversy, to W. G. Estis, who conveyed the land to J. G. Estis, who conveyed same to E. F. Ikard, by and with general warranty.Appellant holds by deed from Ikard, of date August 8, 1887, prior to the registry of the will of John Scott, in Texas.Ikard, the grantor of appellant, testified that "he paid the purchase money in cash at the time he got the deeds from Estis; that he got the deeds in October, 1886; that he did not investigate the title to the land, but he asked W. G. Estis(who, as attorney in fact for J. G. Estis, sold witness the land) if the title was good, and said W. G. Estis told him it was good; that witness believed it, and thought he was getting a good title to it; that he did not know of the will of John Scott when he bought the land, and paid for it, and took said deed."On cross-examination, Ikard stated that he knew the "land was patented to heirs of Robert J. Scott; that he just took Estis' word that the title to said land was good, and made no examination of the records, and made no inquiry as to who the heirs of Robert J. Scott were."On re-examination, he stated "that he had bought land from Estis several times before this, and, up to the time he bought this land, the title to all the lands he had bought from him had been good, and had not failed, and he had found all right, and this was the reason he had taken Estis' word."The conveyance by Mary Yell Cannon was recognized as to her one-fourth interest in her mother's estate.The court, however, held that the will of John Scott passed to her children the one-fourth interest in his estate to which she would have been an heir, had there been no will.The appellant claims to hold under Ikard, a bona fide purchaser without notice of the will.There is no controversy as to the facts that Ikard bought and paid for the one-fourth interest from Mary Yell Cannon; and that she was an heir to one-fourth, or was one of four persons, heirs at law of John Scott; and that at the time of Ikard's purchase and payment, he had no knowledge of the existence of the will; and that at that time, and not until two years later, was the will and its probate duly recorded in Texas.The deed from Mrs. Cannon to W. G. Estis in terms conveyed her one-fourth interest in the lands.She was the legal and equitable owner of one-eighth interest, and the apparent owner of one-fourth interest.We are required to ascertain what effect, if any, the will and its probate in Tennessee had upon the bona fide purchaser from the heir.Under our statutes, as at common law, the lands of a deceased pass to his heirs.Rev. St. art. 1817.Under our statutes, the estate vests in the devisees of a will, if such will exists.The law presumes that a person proven to be dead, left an heir or heirs.Lawson, Pres. Ev. 198.No such presumption obtains as to the existence of a will.A devisee must establish his right through the will; but an heir is not required, before taking as heir, to prove that the deceased was intestate.The law casts the estate upon proof of the facts which make the heirship.It has therefore been held in our courts, as elsewhere, that a purchaser from an heir is not precluded from availing himself of the protection which our registration laws accord to innocent purchasers, when such purchase is asserted against an unregistered deed from the intestate, (Holmes v. Johns,56 Tex. 52;Taylor v. Harrison,47 Tex. 454;) and the same rule has been assented to as against an unregistered will, (March v. Huyter,50 Tex. 243;Ryan v. Railroad Co.,64 Tex. 242.)It is well recognized that a will only probated elsewhere than in the state is not admissible in the courts of the state as evidence affecting the title to lands, the subject of such will.Holman v. Hopkins,27 Tex. 38;Vogelsang v. Dougherty,46 Tex. 472;Mills v. Herndon,60 Tex. 355;Houze v. Houze,16 Tex. 598;Paschal v. Acklin,27 Tex. 192.The probate act of 1848, (Pasch. Dig. art. 1265,) re-enacted in Revised Statutes, art. 1856, provided: "When application is made for the probate of a will which has been probated according to the laws of any of the United States, * * * a copy of such will, and the probate thereof, attested by the clerk of the court in which such will was admitted to probate, and the seal of the court annexed," etc., "may be filed and recorded in the court, and shall have the same force and effect as the original will, if probated in said court: provided," etc.Article 4876, Rev. St.: "Every such will, together with the probate thereof, shall be recorded by...