Summerlin v. Rabb

• Decision Date: 05 June 1895
• Citation: 31 S.W. 711
• Parties: SUMMERLIN et al. v. RABB et al.
• Court: Texas Court of Appeals

31 S.W. 711

SUMMERLIN et al. v. RABB et al.

Court of Civil Appeals of Texas.

June 5, 1895.

Appeal from district court, Raines county; George S. Perkins, Special Judge.

Action of trespass by F. O. Summerlin and others against A. J. Rabb and another. From a judgment for defendants, plaintiffs appeal. Reversed.

The statement of the case by appellants is not objected to by appellees, and is adopted: "This suit was filed in the district court of Raines county, Tex., October 5, 1891, by F. O. Summerlin, W. P. Fitch, Sallie Summerlin, Mattie Limmerick, J. H. Limmerick, Fannie Bentley, Mary Davis, William Davis, Martha Transdale, J. M. Hood, Lizzie Molton, Thomas H. Molton, J. M. Hood, Julia Gibson, James Summerlin, J. H. Bentley, and William McKee, against A. J. Rabb and N. B. Rabb, appellees herein, in trespass to try title to 839 acres of land situated in Raines county, Tex., and patented to the heirs of A. Spain Summerlin, and fully described in plaintiffs' petition, and to recover rents since January 1, 1890, of the annual value of $1,200. Appellees answered by plea of not guilty, and general denial, and statute of limitation of five years, and improvements in good faith amounting to $2,630; and further alleged that the land in controversy was patented by virtue of certificate issued by the state of Texas to the heirs of A. S. Summerlin February 7, 1860, for services rendered by said A. S. Summerlin in the army of the republic of Texas in 1836; that Thomas Summerlin, the father of A. S. Summerlin, for a valuable consideration, by an instrument in writing duly executed and delivered by the said Thomas Summerlin to James H. Summerlin, sold all his right, title, and interest to all the claims to land of the estate of the said A. S. Summerlin, deceased, which deed was lost and never recorded, and cannot be found; that said deed was made before said certificate was issued; that after said A. S. Summerlin had departed this life, and before said certificate issued, J. H. Summerlin, a brother of A. S. Summerlin, at an expense of $504.75, procured the issuance of the certificate belonging to the estate of A. S. Summerlin, to the heirs of A. S. Summerlin, embracing certificate No. 187, under which the land in controversy was located and patented; that said certificate was issued by virtue of `An act to reorganize the court of claims,' and extend the time for the presentation of claims for land and money against the republic of Texas, approved February 7, 1860; that, although said service was rendered by A. S. Summerlin in the years 1835 and 1836, said certificate had not been issued until after February 7, 1860; that under said law a very short time was allowed for the presentation of claims before the same would become barred; that the said J. H. Summerlin employed attorneys to assist him in getting up the proof and procuring the issuance of said certificate, at an expense of $504.75, which was necessary for the protection of the property of the estate of A. Spain Summerlin, deceased. Appellants further alleged that in January, 1861, James H. Summerlin was appointed administrator of the estate of A. S. Summerlin, deceased, by the probate court of Harrison county, Tex.; that there was a necessity for said administration; that said debt of said J. H. Summerlin was a just debt against the estate of A. S. Summerlin, and was due and unpaid, and had been created for the benefit and protection of the property of said estate; that said James H. Summerlin qualified as such administrator by giving bond, etc., as required by law; that on January 28, 1861, the said James H. Summerlin filed his said claim for $504.75 against said estate in said probate court of Harrison county, Tex., which was duly allowed by said court as a just claim against said estate on January 28, 1861; that on said date J. H. Summerlin filed in said court his application to sell the land certificate No. 187, together with other property of said estate, to pay said debt of $504.75 and costs of administration, and said court ordered said property to be sold on the first Tuesday in April, 1861, by said administrator, for a fair price, to Sam A. Mosely; that said sale was duly confirmed by said probate court at the April term, 1861, thereof, and deed made in accordance therewith by said administrator; that appellees claim a regular chain of title from said Mosely down to them. A jury was waived, and the cause tried before the court October 6, 1893, and judgment rendered for defendants, from which this appeal was taken."

B. B. Hart, for appellants. Craddock & Looney, for appellees.

LIGHTFOOT, C. J. (after stating the facts).

The only assignments of error which we deem it important to consider are the third and fourth, as follows: "(3) The court erred in holding that the letters of administration granted to J. H. Summerlin in January, 1861, by the probate court of Harrison Co., Texas, upon the estate of A. S. Summerlin, deceased, were valid; A. S. Summerlin having been killed at the Alamo in 1836, leaving no debts and no property in Harrison Co., Texas, and no necessity existing for an...