Templeton v. Ferguson

• Decision Date: 16 December 1895
• Citation: 33 S.W. 329
• Parties: TEMPLETON et al. v. FERGUSON et al.
• Court: Texas Supreme Court

33 S.W. 329

TEMPLETON et al. v. FERGUSON et al.

Supreme Court of Texas.

December 16, 1895.

Error from court of civil appeals of First supreme judicial district.

Trespass to try title by Frank Templeton and others against Catherine Ferguson and others. From a judgment of the court of civil appeals (32 S. W. 148) reversing a judgment for plaintiffs, plaintiffs bring error. Affirmed.

Rector, Thomson & Rector, for plaintiffs in error. Thomas M. Joseph, for defendants in error.

DENMAN, J.

The evidence in the record shows:

(1) That James B. Murphy came from Georgia to Texas as a soldier under Fannin; that he was a member of Capt. Wadsworth's company, and was killed at Goliad, while carrying a dispatch from Ward to Fannin, a few days before the Fannin massacre in 1836; that he "never located or lived in Texas only in the service under Fannin."

(2) That during the July term, 1837, of the probate court of Harrisburg county, republic of Texas, Wynns & Lawrence, composed of Archibald Wynns and William Lawrence, representing themselves to be attorneys in fact of William Bressie, filed a petition in said court representing "that James G. Aldridge, Thomas Rogers, and James B. Murphy, who departed this life some time in the year 1836, intestate, were soldiers in the service of the republic aforesaid, previous to the organization of said republic into counties; that said Bressie has purchased the claims of the persons aforesaid from their legal representatives in the United States, and has power from said persons to settle said claims in such manner as they themselves might have done could they have been present; which said powers of attorney, with a power of attorney from the said Bressie, are now in the possession of your petitioners, authorizing and empowering them to administer upon the estates of the persons aforesaid"; and praying that they be appointed to administer said estates in accordance with law.

(3) That at the same term said court entered the following order: "Estates of James Rogers, Thos. G. Aldrich & James Murphy. Republic of Texas, County of Harrisburg. Probate Court, July Term, 1837. A. Wynns & W. Lawrence appeared in open court, and applied for the administration of the estate of Thomas G. Aldrich, James Rogers, and James Murphy, deceased, and, the said Wynns & Lawrence having complied with all the requisitions of the law, and there being no legal objections filed to their appointment, it is ordered by the court that the said Wynns & Lawrence be, and they are hereby, appointed administrators of said estate, with full and ample powers to settle the same according to law, always subject to the decrees and orders of this court. Ordered, that the said Wynns & Lawrence give bond and security in the amt. of one thousand dollars for each estate, with the usual condition."

(4) That in pursuance of said order said administrators entered into a bond of a thousand dollars in each of said cases, which was duly approved by the court.

(5) That the records of the land office show that the following certificates had been issued at the respective dates shown thereon:

"No. 1,841. 1,280 acres. Republic of Texas. Know all men to whom these presents shall come: That Jas. B. Murphy having served faithfully and honorably for the term of three months from the twenty-third day of December, 1835, until the twenty-seventh day of March, 1836, and being honorably discharged from the army of Texas, is entitled to twelve hundred and eighty acres bounty land, for which this is his certificate. * * * In testimony whereof I have hereunto set my hand at Houston, this day of Jan'y 13th, 1838. Approved 27th Aug., 1845. Barnard E. Bee. Sec. War. W. G. Cooke, Sec. War & Marine. (J. S. Sydnor.)"

"165. This is to certify that the heir of James B. Murphy, deceased, has appeared before the board of land commissioners for the county of Harrisburg, and proved according to law that he arrived in this country in the fall of eighteen hundred and thirty-five, and that he was a single man, and entitled to one-third of a league of land, upon the condition of paying at the rate of five dollars for every labor of irrigable land, three dollars and fifty cents for every labor of temporal or arable land, two dollars and forty cents for every labor of pasture land, which may be contained in the survey secured to him by this certificate. Given under our hands this fifth day of February, 1838. N. J. Dobie, President. Thos. M. Ward, Wm. P. Harris, Associate Commissioners. Attest: A. Jackson Davis. Clerk."

"No. 2,374. 640 Acres. Republic of Texas. Know all men to whom these presents shall come: That James B. Murphy, having served faithfully and honorably for the term of three months from the twenty-third day of December, 1835, until the twenty-seventh day of Mar., 1836, and being honorably discharged from the army by death, is entitled to six hundred & forty additional acres bounty land, for which this is his certificate. * * * In testimony whereof I hereunto set my hand at Houston, the thirteenth day of February, 1838. Approved May 15, 1846. Wm. G. Cooke, Adj. Gen'l. Barnard E. Bee, Sec. War. Paymaster General."

(6) That after the issuance of these certificates said administrators, on the 26th day of March, 1838, filed in said court a paper in the following words, namely: "An inventory of all the property belonging to the succession of James B. Murphy, which has come into the hands of A. Wynns and W. Lawrence, of Harrisburg county, administrators of said succession as appraised by James S. Hollman and Thomas H. Mulryne, appraisers appointed by the court of probates of this county for this purpose, viz.: One-third of a league of land as a headright acquired by virtue of a residence in the republic at the time and prior to the date of the Declaration of Independence, for which a certificate has issued, after the proof being made, valued at six hundred dollars; a certificate of nineteen hundred and twenty acres of bounty land for having volunteered during the war, and being slain, estimated at three hundred and thirty-seven dollars and fifty cents ($337.50); twenty-five dollars and five cents military scrip for three months' service, estimated at twenty-five dollars ($25.00); whole amount of unlocated land claims three thousand three hundred and ninety-six acres, estimated at nine hundred and thirty-seven dollars and fifty cents, ($937.50); twenty-five dollars and five cents military scrip, estimated at twenty-five dollars; total valuation, $962.50. There are no debts due to the estate that the administrators are informed of."

(7) That thereafter the court in said administration made the following orders:

"February Term. March 1st, 1839. A. Wynns appeared and filed the following acct. current with the succession, and surrendered to the court a certificate for 640 acres and one for 1,280 acres of bounty land, and a draft on the treasury for $25.05. The court ordered that the admr. file the certificate for a headright mentioned in the inventory at or before the April term of court, and that on so doing they be discharged; and further ordered that they pay all costs."

"April term. April 27, 1840. On motion of C. W. Buckley, atty. for the admr. of this succession, it was ordered by the court that so much of the order entered in the matter of this succession as dismissed the admr. from further action to be revoked."

"Republic of Texas, County of Harris. Order of sale made upon Pet. filed Sept. 22, 1840. Being satisfied by the affidavit of A. Wynns of the facts set forth in the within petition, the admr. is authorized to proceed and sell the property mentioned, giving thirty days' notice of the time, place, and terms of sale, and the property to be sold, in some newspaper in this county, and make due return thereof in terms of the law. Houston, Sept. 17, 1840. I. N. Moreland, Pro. Judge H. Co."

(8) That thereafter, on the 4th day of December, 1840, said administrators in said estate filed the following paper:

"The Estate of J. B. Murphy, deceased. Account of Sales. 1/3 of a League of Land Unlocated.

                To miner .................................  $ 26 80
                1280 acres bounty do. to Sydnor ..........    52 80
                640 acres bounty do. to Sydnor ..........     28 00
                                                            _______
                                                            $107 60
                Less auctioneer's commissions ............    10 76
                                                            _______
                                                            $ 96 84
                $5 military scrip paid to clerk as part
                  of costs constituted whole of the
                  property to .........................        4 00
                                                            _______
                                                            $100 84
                                                            =======
                Amount brought over ......................  $100 84
                Expenditure per contra ...................    98 80
                                                            _______
                Balance due the estate ...................  $  2 04
                          Charges against the Estate
                Counsel fee ..............................   $30 00
                      James B. Murphy, from page 426
                Five dollars paid board of land comrs
                  for cert. of headrights ..................  5 00
                Notice of sales in Star ....................  2 00
                Notices of sales in Times ..................  2 00
                Charges paid out for letters, judges, etc.    9 00
                Administrator's commissions ................ 10 00
                Clerk's, sheriff & court fees .............. 40 80
                                                            ______
                Whole amount of expenditures .............  $98 80
                

"The above contains an account of said estate on final settlement, the same having been fully administered. The administrator prays the same to be closed up, and they discharged. Wynns & Lawrence, Admrs."

"Republic of Texas, County of Harris. Before me, John Allen Southmayd, Dept. Clerk in and for the county of Harris, aforesaid, this day came A. Wynns, administrator of the estate of J. B....