Strong v. Garrett

• Decision Date: 10 February 1949
• Docket Number: No. 6419.,6419.
• Citation: 218 S.W.2d 873
• Parties: STRONG et al. v. GARRETT et al.
• Court: Texas Court of Appeals

Page 873

218 S.W.2d 873

STRONG et al. v. GARRETT et al.

No. 6419.

Court of Civil Appeals of Texas. Texarkana.

February 10, 1949.

Rehearing Denied March 10, 1949.

Appeal from District Court, Rusk County; R. T. Brown, Judge.

Trespass to try title by Jesse Joseph Strong and wife against Charlie Garrett and others, wherein certain defendants filed cross-actions. From a judgment against the plaintiffs and the defendants Leuvinia Lewis and husband, and in favor of the defendant Charlie Garrett and wife the plaintiffs Jesse Strong and wife and Leuvinia Lewis and husband appeal.

Judgment affirmed.

Gladney & Stephen and Paul S. Colley, Jr., all of Henderson, for appellants.

Reagan R. Huffman and W. E. Tumlin, both of Marshall, for appellees.

HARVEY, Justice.

Jesse Joseph Strong and wife sued Leuvinia Lewis and husband; Charlie Garrett and wife; and Mrs. Georgia Bateman, Claud and John Bateman, in trespass to try title to 62½ acres of land of the Juan Y. Barbo Grant in Rusk County, Texas. The Batemans filed disclaimers. Garrett and wife, among other defenses, pleaded the ten years' statute of limitation and filed a cross-action against Strong and wife, as well as against Leuvinia Lewis and husband, for the title and possession of the tract of land involved, which was described in the pleadings as tract No. 3 of the Wylie Harris Subdivision of the Juan Y. Barbo Grant of land in Rusk County. In the alternative, Garrett and wife asked for improvements in good faith. Leuvinia Lewis and husband as one of their defenses pleaded as res judicata a judgment in a former suit, styled Cause No. 13,068-A, in the District Court of Rusk County, Texas. The case was tried to the court without a jury and from a judgment against the plaintiffs and against Leuvinia Lewis and her husband, and in favor of Charlie Garrett and wife for the title and possession of the land in dispute, Strong and wife and Leuvinia Lewis and husband have perfected an appeal to this court.

It was developed on the trial of the case that in December, 1902, a Mrs. M. B. James, the common source of title, deeded to Anderson Strong 62½ acres of land of the Juan Y. Barbo Grant in Rusk County, Texas. The description in the deed was a tract designated as Block No. 2, of the Wylie Harris Subdivision of such survey, and a vendor's lien note for $250.00 payable to Mrs. James was retained in such deed. This note apparently was acquired by a firm known as Mays & Harris. In 1913, Anderson Strong renewed this note to Mays & Harris; Strong died in 1916, and his widow, Ida Strong, thereafter on July 7, 1917, renewed the note, which extension showed a balance due of $360.00. The probate court of Rusk County set aside this particular tract of 62½ acres to Ida Strong, widow of the deceased, subject to the vendor's lien note against it. On December 12, 1917, Ida Strong by deed of that date deeded the land to Charlie Garrett, in consideration that he pay off the purchase money note given by Anderson Strong to Mrs. James and in the deed it was recited that such note was then owned by Mays & Harris. On the same date, December 12, 1917, Charlie Garrett paid to Mays & Harris the amount of said note, as shown by a release from Mays & Harris to Garrett dated January 19, 1939. Shortly after the deed to Garrett was made by Ida Strong, they married on December 23, 1917, and lived together until August 13, 1936, when Ida Strong Garrett died. During their married life they lived on and used and enjoyed the 62½ acre tract involved in this suit which is block No. 3. It thus appears that while the deed dated December 28, 1902, from Mrs. M. B. James to Anderson Strong described and conveyed block No. 2 of the Juan Y. Barbo Grant, Strong and his successors in title actually went into possession of and claimed block No. 3 of such survey. After the death of his wife in 1936, Charlie Garrett the following year married Evie Garrett, who is a nominal defendant in this cause. The plaintiffs, Joseph and Alma Strong, base their title to the land in dispute upon the fact that as children of Anderson and Ida Strong they are the owners of the record title to such land; the...