Smith v. Dunman

• Decision Date: 24 January 1895
• Citation: 29 S.W. 432
• Parties: SMITH v. DUNMAN et al.
• Court: Texas Court of Appeals

29 S.W. 432

SMITH v. DUNMAN et al.

Court of Civil Appeals of Texas.

January 24, 1895.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by William M. Dunman and others against George E. Smith. From a judgment for plaintiffs, defendant appeals. Reversed.

Austin & Rose, for appellant.

GARRETT, C. J.

This was an action of trespass to try title, brought by the appellees, as heirs of Daniel Dunman, deceased, to recover of George E. Smith, the appellant, lot No. 3 in the partition of the Martin Dunman survey, in Galveston county, between Elizabeth, the widow of Martin Dunman, deceased, and their children. The partition was made in 1854, and lot 3 was set apart to Susan Holt, a daughter, and was conveyed by her to Daniel Dunman. Lot 2 of said partition was set apart to Daniel Dunman. To the widow, Elizabeth Dunman, one-half of the survey was allotted. Daniel Dunman died in 1862. Defendant claims the land under a deed executed to him by Elizabeth Hamshire, the widow of Dunman, who had since the partition married Hamshire. Defendant produced evidence to establish a lost deed from Daniel Dunman to his mother, Elizabeth Dunman, which conveyed both of the lots 2 and 3; and that the conveyance was made in consideration of a conveyance by his mother to him of a part of the tract set apart to her. The deed from Elizabeth Dunman to Daniel Dunman was in evidence. It was dated June 3, 1854, conveyed 295 6-10 acres, and contained the recital, as a consideration for said conveyance, "295 6-10 acres of land, being lots No. 2 and 3" in the partition. William R. Clubb, a witness for defendant, testified that the deed was executed; that he was one of the subscribing witnesses thereto, and saw Daniel Dunman sign it; that it conveyed the lots 2 and 3, and was made in consideration of the conveyance from Elizabeth Dunman to Daniel Dunman. There was much other testimony tending to show the existence of the deed. Appellant offered in evidence a receipt purporting to have been given by Elizabeth Hamshire to H. M. Trueheart & Co., real-estate agents, for a lot of papers belonging to her, which had been in their hands, and among them was mentioned a deed, "Daniel Dunman to Elizabeth Dunman." It was signed also by two witnesses. After a general objection by the defense for the want of relevancy or competency had been overruled by the court, and the plaintiff was about to read the receipt in evidence, the court of its own motion excluded the paper until it should be proved by one of the subscribing witnesses. Evidence was given that one of the witnesses was out of town, and the person testifying did not know where the other witness was. The witnesses were not shown to be beyond the reach of the court. It was the right of plaintiffs to waive the objection, and the court, perhaps, should not have raised it for them; but if objection had been properly made the action of the court would not have been error. Railway Co. v. McRae, 82 Tex. 616, 18 S. W. 672.

Lizzie Cronea, a witness for the plaintiff, and daughter of Elizabeth Dunman, was allowed to testify about a declaration made to her by her mother, since dead, after she had conveyed the land to the defendant, in a...