Stafford v. Harris

• Court: Texas Supreme Court
• Writing for the Court: Garrett
• Citation: Stafford v. Harris, 17 S.W. 530 (Tex. 1891)
• Decision Date: 10 November 1891
• Parties: STAFFORD <I>et al.</I> v. HARRIS <I>et al.</I>

17 S.W. 530

STAFFORD et al. v. HARRIS et al.

Supreme Court of Texas.

November 10, 1891.

Commissioners' decision. Section B. Appeal from district court, Travis county; JOHN C. TOWNES, Judge.

Action of trespass to try title by Sarah A. Stafford and others against John W. Harris and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

Fred Carleton and F. G. Morris, for appellants. S. R. Fisher, for appellees.

GARRETT, P. J.

This was an action of trespass to try title by the heirs of William and Martha Stafford to recover two tracts of land comprising two-thirds of a league and labor, situated in Brown and Coleman counties. Defendants, who are the appellees, answered by a plea of not guilty, the several pleas of limitation, and a plea of stale demand. The case was ried by the court without a jury, and judgment was rendered in favor of the defendants. There is no statement of facts brought up in the record, but the judge who tried the case filed his conclusions of facts and of the law, to which the plaintiffs excepted, and have assigned errors for revision. The findings of facts are as follows:

"(1) I find that the plaintiffs are heirs of William Stafford and Martha Stafford, and, further, that there are others, not parties to this suit, who are also heirs of said parties. (2) I find that the defendants are the surviving widow and children of John W. Harris, deceased. (3) I find that the land in controversy was located by virtue of a league and labor land certificate issued to John Sanders, and of which Matthew Cartwright was assignee. (4) That, after the death of William and Martha Stafford, Matthew Cartwright conveyed said certificate by warranty deed, to the heirs of William Stafford one undivided half, and to the heirs of Martha Stafford one undivided half, said deed being dated November 22, 1849, and recorded in Coleman county September 11, 1885, and in Brown county September 12, 1887. (5) That said certificate was located by John H. Herndon on the league and labor of land in controversy, under a contract by which he was to have one-third thereof for his services; and that said league and labor was patented to Matthew Cartwright, assignee of John Sanders, on the 17th day of August, 1854, by patent No. 152, volume 2, first class. (6) That in 1857, 1858, and 1859 administration was duly and legally pending on the estates of William and Martha Stafford in the probate court of Fort Bend county, Texas, C. C. Dyer being administrator; and said Dyer was the husband of Sarah Stafford, one of the heirs of said William Stafford. (7) That said probate court took jurisdiction of said league and labor of land under said administration. That on February 2, 1859, the heirs of Martha and William Stafford all joined with the administrator in a petition for final partition and distribution of said estates, including the land in controversy. (8) That in such petition said parties recognized and set out the undivided one-third interest of John Herndon in said land. (9) That on said petition (Herndon having accepted service) the court appointed commissioners to make partition and distribution of said estate. (10) That said commissioners reported to the court that they had divided said league and labor into three equal parts, and numbered them, and that this was done to enable the court to separate the interest of Herndon from that of the estate, such division of the league being made by running two lines north and south, so as to make three tracts, each being 1,891 2/3 varas wide and 4,510 varas long, the short lines being east and west lines, and the long lines being north and south lines. (11) That Herndon drew and got the middle one-third of said land, and the same was set aside to him by order of the court. (12) That the commissioners further recommended the sale of the interest of the estate as incapable of division in kind, appraised same at one dollar per acre, and stated definitely the respective share of each distributee in the property. (13) That thereupon the court adjudged the property incapable of division in kind without manifest injury to said heirs of Martha and William Stafford, and appointed Andrus, clerk of the court, as a special commissioner to sell the same, ordering same to be sold on first Tuesday in May on twelve months' credit, with personal security and lien on the land. (14) That the special commissioner sold the land, after due and legal notice, on June 7, 1859, to John H. Herndon, for the sum of forty-one cents per acre, aggregating $1,238, on credit of twelve months. (15) That said sale was duly reported to the court as having been made in all respects as required by the order of sale, and was by the court examined and confirmed, and title was ordered to be made, taking personal security and reserving lien on the land to secure the purchase money. (16) That no deed has been proved or produced in court from Walter Andrus, commissioner, to John H. Herndon, but that, under the circumstances of the case, the execution and delivery of a deed reserving a lien in conformity with the order of sale and confirmation is presumed. (17) That the commissioner took the note of John H. Herndon, with personal security, for the amount of his bid, to-wit, $1,238. (18) That when this note fell due the commissioner brought suit on it in his own name for the use and benefit of said heirs of William and Martha Stafford, and dismissed as to the sureties, and took judgment by default against Herndon, but did not foreclose nor attempt to foreclose any lien on the land, nor did Herndon plead any failure of title or other defense. (19) That at that time Herndon was solvent, and amply able to have paid the judgment, and same could have been realized from sale of his property; but for some cause — presumably the operation of the stay law — no process was issued out against him till January, 1868. (20) That in January, 1868, and again on May 11, 1868, respectively, executions were issued on said judgment, and a considerable amount of real estate in the town of Richmond, and other lands in Fort Bend county, belonging to said John H. Herndon, were levied on and sold, realizing near $1,000. That a portion of this real estate was bid in by the commissioner for the use of the heirs of William and Martha Stafford, bringing $105. The heirs refused to receive this property, and disclaimed title thereto. The amount of cash actually coming to the hands of the commissioner is left in doubt, the copies from the execution docket showing that he got all the proceeds of the sale into his personal possession, except the $105 item above referred to, $69 paid for costs, and $268, shown to have been in the hands of his attorneys; his (Andrus') testimony being to the effect that he did not now know the amount brought by the property, but he thought not more than enough to pay costs of suit and attorney's fees was realized therefrom. (21) That in 1869 Herndon took the benefit of the bankrupt law, and the balance due on this judgment was proven up by Walter Andrus, commissioner, for the use of the heirs of said William and Martha Stafford, as a claim, without security, against his estate, and took its due course in the administration of said estate in bankruptcy. (22) That, under the bankrupt proceedings, whatever title John H. Herndon had in the lands in controversy passed to John W. Harris by purchase by deed dated August 4, 1869, and duly executed by the assignee in bankruptcy under proper orders of the court authorizing and confirming the sale, and said deed was recorded in Brown county May 3, 1872, and in Coleman county February 2, 1881. (23) That John H. Herndon and John W. Harris have paid taxes on the said land continuously since the sale by Andrus, commissioner, in 1859. (24) That the land in controversy lies partly in Brown and partly in Coleman counties."

Appellants have made the following assignments of error, which are relied on to reverse the judgment of the court below: "(1) The court erred in rendering judgment for the defendants, because the evidence introduced by the plaintiffs and the defendants shows that the land sued for in this cause was the property of the plaintiffs. (2) The court erred in not rendering judgment for the plaintiffs for the land in controversy in this cause, because the evidence introduced by the plaintiffs and the defendants shows that the plaintiffs had a perfect title to the...