Stubblefield v. Hanson

• Decision Date: 04 April 1906
• Parties: STUBBLEFIELD et al. v. HANSON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

94 S.W. 406

STUBBLEFIELD et al. v. HANSON et al.^*

Court of Civil Appeals of Texas.

April 4, 1906.

On Rehearing, May 9, 1906.

Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.

Action by T. J. Hanson and others against W. H. Stubblefield and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Stevens & Pickett, for appellants. Baldwin & Christian, for appellees.

NEILL, J.

This is an action of trespass to try title brought by appellees against appellants in the ordinary form, with the additional allegation of title under the statute of limitations of five and ten years, to recover the Frederick Gibenrath survey of 1920 acres, situated partly in Liberty and partly in San Jacinto counties. On the day suit was filed, L. H. Perry, one of defendants, filed an answer, waiving the issuance and service of citation, and a cross-bill, making himself a plaintiff against all the parties to the suit, by which he sued to recover the entire survey. The defendants filed pleas of not guilty both as to the suit of the original plaintiffs and as to the cross-bill of Perry. Before the trial, the case as between the original parties and Perry, was compromised, and they made common cause against all the other original defendants. The case was tried before the court without a jury and judgment rendered for plaintiffs.

Conclusions of Fact.

(1) The original field notes of the survey, which were introduced in evidence by appellees, show that it was located by virtue of bounty warrant land certificate No. 927, for 1920 acres, and that the survey was made for Frederick Gibenrath on December 15, 1851, and that East San Jacinto river runs through the same north and south.

(2) Appellants' title, in so far as it rests upon documentary evidence, depends upon the following: (1) A petition of the county court of Harris county, filed September 30, 1851, by J. Castanie, administrator of the estate of Frederick Gibenrath, for the sale of the 1920 acre bounty warrant land certificate No. 927. (2) An order of said court directing the sale of said certificate. (3) A report of said administrator of said certificate to William Baker, filed November 22, 1851. (4) An order of court, made on November 29, 1851, approving sale of said certificate to William R. Baker, and directing the administrator to make deed, the foregoing orders include other certificates, among which is a donation certificate of 640 acres, and the order of approval recites, "and the purchaser, having elected to pay the amount of his bid in cash, it is ordered that thereupon the deed be made to him without lien or mortgage. (It was admitted by defendants in open court that the deed records of Liberty county, Tex., were destroyed by fire in the year 1874, and that all deeds recorded in said deed records prior to that date were destroyed.) (5) A certified copy from the deed records of Archer county, Tex., of a deed dated December 2, 1851, by J. Castanie as administrator of Frederick Gibenrath, deceased, to William R. Baker, conveying donation land certificate for 640 acres, which recites that it is made in pursuance of an order of the probate court of Harris county, Tex., made at September term, 1851, authorizing said administrator to sell said certificate, and that the return of said sale was made to its November term, 1851, and sets out in full the order of court confirming the report of sale. (6) A certified copy of the will of W. R. Baker and other instruments from the records of Harris county, Tex., by which it was established that, after the death of said William R. Baker, all the property, real, personal, and mixed, of every nature and description belonging to the estate of William R. Baker, became the property of his grandson, William Baker Turner. (7) A deed dated February 10, 1904, from William Baker Turner to L. H. Perry, conveying the 1,920 acres involved in this suit. (8) A conveyance from L. H. Perry to his coplaintiffs of said 1,920 acres, except 300 acres reserved by him; to which the other plaintiffs relinquished their claim in his favor. (9) A deed dated March 6, 1896, and recorded in deed records of Liberty county, Tex., on March 16, 1896, from T. J. Hanson, conveying to F. H. Hanson all that part of said Frederick Gibenrath survey lying east of the East San Jacinto river. (10) A deed from F. H. Hanson, conveying T. J. Hanson all that part of said survey lying west of East San Jacinto river, filed for record March 16, 1896. Each deed was properly acknowledged and recorded.

(3) The appellee, T. J. Hanson, testified that he owned and claimed 614 acres of the Frederick Gibenrath survey, all that part west of the San Jacinto river, except 42½ acres, which he had previously sold to Mrs. Alsworth; that he had had a part of the land under fence since the death of his father which occurred 1889, and had had possession thereof ever since then, having had a tenant on the land; that there is a house on the land, and that it had been occupied and cultivated by his tenant ever since that time, except last year; that he had bought a little of the land from Mr. Allen since his father's (witness') death; that he and his brother went into possession of the part of the land his father and his brother, F. H. Hanson, owned together right after his father's death, and that a few months thereafter he and his brother had a partition and division of the land, witness taking the part west of the river and his brother the part east of the river; that it was after that he bought from Allen; that the part witness had possession of came from his father; that his father was never in possession of the land and never had any of it fenced; that he put the fence there and had tenants there during each and every year since 1889; that Mrs. Charpoit's husband, F. H. Hanson, put a fence on the part of the land claimed by herself and her children, Alma and Edgar Hanson, which is the part of the survey lying east of the river; that his brother had this part fenced and leased it to a man named Thompson in the year 1889, after his father's death; that his brother leased 450 acres of it to Thompson, and he fenced it and it has been fenced and occupied by him and his widow and children ever since that time and that they have paid taxes on it each and every year since that time; that witness had paid taxes on his 614 acres each and every year since he was 21 years of age, and that he is now (the time of trial) 31 years old; that during the time he was in possession of the land he claimed to be the owner of the entire tract, and he never heard of any one claiming adversely to him; and that the land east of the river has been claimed by no one except his brother, F. H. Hanson, and his wife, Mrs. Charpoit, and her children; that he did not have his entire 614 acres fenced, only 25 or 30 acres with a house on it and in cultivation; nor did Mrs. Charpoit or his brother, F. H. Hanson, have all his part inclosed, but only a tract thereof of about 450 acres.

(4) That Mrs. Charpoit is the widow of his deceased brother, F. H. Hanson, and was his wife at time of his death; that they had five children, three of whom died young, and the other two, Alma and Edgar, are plaintiffs in the suit. That the defendants, Mrs. Perry and Mrs. Stubblefield, are his sisters, and the Gilchriste minors, who are defendants, are the children of his deceased sister, Mrs. Gilchriste, who was the wife of R. G. Gilchriste; that he did not know what his father paid for the land; that his father and brother bought part of it together, and paid $750 for about 1,400 or 1,420 acres, something like that. That his brother and sister live in and around Cleveland, Tex., near the land in controversy, and have lived there ever since the death of his father, and that they knew that he (witness) had possession of the land.

(5) The defendants, W. H. Stubblefield, George Stubblefield, Martha Perry, R. G. Gilchriste, Martha Gillum, Arthur, Volie, and Grigsby Gilchriste, introduced in evidence the following instruments: (1) A deed dated May 26, 1873, from Johanna Hassman to Catherine Fossbinder, conveying "1,920 acres of land granted to heirs of Frederick Gibenrath, deceased, situated in Liberty county, Tex. (which is described as the land in controversy), which contains the following recitals of the grantor: "That I, Johanna Hassman, formerly wife and sole heir of Frederick Gibenrath, deceased, late of the city of New Orleans, now of Houston, Texas, in consideration of love and affection I bear to my daughter Catherine Fossbinder," etc., and was filed for record May 26, 1879, and recorded in records of Liberty county. (2) A power of attorney from widow J. Ballister, dated May 3d, 1876, to Winch & Schaffer, authorized and empowered them to make and cause to be made in her name, by suit or otherwise, of all lands of her deceased father, F. Gibenrath, between her, the widow J. Ballister, and Mrs. Fossbinder. This instrument was filed for record March 7, 1877, and recorded same day in deed records of Liberty county. (3) A deed of partition dated January 6, 1877, executed by widow J. Ballister, acting by her attorneys in fact, Winch & Schaffer, and C. Fossbinder, acting for herself, whereby Catherine Fossbinder conveyed to widow J. Ballister, the lower one-quarter of the said 1,920 acres of the land in controversy, conveying 480 acres; and the said Ballister conveyed to said Catherine Fossbinder the remaining three-quarters of said survey, the same being the north or upper three-quarters thereof, in which instrument it is recited that the parties thereto are the sole heirs at law of Frederick and Johanna Gibenrath. (4) A deed dated May 24, 1879, from Catherine Fossbinder to J. C. Winch, conveying 1,440 acres of the Frederick Gibenrath 1,920 acre survey it being the north three-quarters thereof, which instrument was filed for record May 26, 1879, and recorded in Liberty county. (5) A deed dated May 22, 1877, from J....