Terry v. Baskin

• Decision Date: 06 January 1932
• Docket Number: No. 1479-5734.,1479-5734.
• Parties: TERRY et al. v. BASKIN et al.
• Court: Texas Supreme Court

Page 929

44 S.W.2d 929

TERRY et al. v. BASKIN et al.

No. 1479-5734.

Commission of Appeals of Texas, Section A.

January 6, 1932.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by A. H. Baskin and others against John Terry and others. Judgment for plaintiffs against certain defendants was affirmed by the Court of Civil Appeals in 27 S.W.(2d) 857, and the said defendants bring error.

Reversed and remanded.

Neff, Hale & Neff, Jos. W. Hale, and Pat M. Neff, Jr., all of Waco, for plaintiffs in error.

W. A. Morrison, A. J. Lewis, Roy Baskin, and E. A. Wallace, all of Cameron, for defendants in error.

CRITZ, J.

The record in this case discloses the following facts:

J. M. Terry, during his lifetime, owned as his separate property the tract of about 200 acres of land in Milam county, Tex., involved in this suit. J. M. Terry died intestate in 1902. Terry was twice married. The first wife, Josephine Terry, died in 1891. About two years after the death of his first wife, J. M. Terry married Mollie Terry. About the year 1908 Mollie Terry, surviving widow of J. M. Terry, deceased, married one J. T. Maples. Mollie Maples (née Terry) died on December 30, 1927. J. M. Terry lived on, used and occupied the premises here involved with both wives, respectively, until the date of his death, and his surviving widow, Mollie Maples (née Terry), subjected the premises to the same use until the date of her death in 1927.

The record further discloses that at the time of his death J. M. Terry left surviving him as his only heirs at law his surviving wife and eleven children. Six of these children were by the first marriage, and five by the second marriage.

It will thus be seen that at the time of the death of J. M. Terry the title to the land in question here descended and vested in the above heirs at law of J. M. Terry, as follows: Each of the eleven children owned an undivided one-eleventh interest in the land, but this title was burdened with the homestead right of the then Mrs. Mollie Terry, later Mrs. Mollie Maples, to use and occupy the land as a homestead for the balance of her natural life, and with the further fact that such surviving wife took as heir at law of J. M. Terry, deceased, an estate for life of one-third undivided interest in such land. This is undisputed by the record.

The record further discloses that on August 7, 1915, while the conditions were as above stated, and while the second wife was occupying the land as a homestead, as she had a right to do, and while the second wife was living with her second husband, the six children of the first marriage of J. M. Terry, being the plaintiffs in error here, executed and delivered to Morrison & Lewis, attorneys, the following instrument of writing:

"That we, the undersigned, John Terry, Cage Terry, Luther Terry, Charley Terry, Marshall Terry and Alice Terry Gray, joined by her husband, Claude Gray, being the sole surviving heirs at law of J. M. (familiarly known as Jim) Terry, have and by these presents do employ Morrison & Lewis, a firm of Lawyers composed of W. A. Morrison and A. J. Lewis, as our true and lawful attorneys in fact for us and in our name to represent us fully in all respects as we could represent ourselves in the recovery of every claim, real, personal and mixed, that we may have against any and every person whomsoever, arising out of or to which we are entitled by reason of our inheritance from our deceased father, J. M. Terry, above mentioned, or his wife, our mother; said estate is supposed to consist of lands and other personal claims for insurance money, etc., against persons now claiming and in possession of lands to which we think we are entitled, or ought to be entitled by reason of our inheritance, as aforesaid, or otherwise, it being intended hereby to employ said attorneys to recover for us any and all lands situated in Milam County, Texas, to which we may have a claim, whether said claim is disputed or not, to that end and for that purpose, and in consideration of the services already rendered and to be rendered by said attorneys, we have and by these presents do here now sell, assign, convey and set over to said attorneys a full undivided one-half of all of the lands and property to which we may be so entitled and which may be recovered by us or received by us or delivered to us from any person whomsoever so that said attorneys shall equally with us and each of us in whatever may be realized presently or prospectively from any and all claims to real estate or personal property which we are entitled to receive or may be entitled to receive hereafter from the estate of our said deceased father and mother or from either of the same.

"And our said attorneys are here now given full power and authority to act for us in reference to said property in its recovery and in our name to institute any and all suits as may be necessary and to sign our names and execute all papers that said attorneys may think meet and proper for the advancement of our interest or for the advancement of their interest in the recovery and realization of said property, it being the especial intention hereby to convey to said attorneys a full undivided one-half of all of the lands to which we may be so entitled and especially to all of said lands which may now be in the possession of one Maples and his wife, who was our father's second wife, and whenever said property shall be recovered or received by us or the possession thereof obtained, then our joint interest in the same shall be equal with said attorneys and no more; and we hereby warrant and forever defend the title to said property herein conveyed to said attorneys, to them and their heirs and assigns forever against every person whomsoever lawfully claiming or to claim the same or any part thereof.

"We further hereby ratify and confirm any and all acts that may be done by our said attorneys in respect to the recovery of any of our said property to all intents and purposes, the same in all respects as if done by ourselves in person.

"But it is distinctly understood that if nothing is realized by us out of any of the estate or property, hereinbefore mentioned, then we are not to owe or be indebted to said attorneys in any sum whatever."

The above instrument was duly acknowledged by all parties thereto as required by law, and was also duly recorded in the deed records of Milam county, Tex., on November 2, 1915, having been filed for record on October 29, 1915.

At the October term, 1915, of the district court of Milam county, Tex., Morrison & Lewis, acting as attorneys for the six children of J. M. Terry, deceased, by his first marriage, being the same parties who signed the instrument of writing above set out, filed a suit against Mollie Maples, surviving wife of J. M. Terry, deceased, and her then husband, J. T. Maples, and also against the five children of J. M. Terry's second marriage. This petition was in three counts. The first count was a simple action in trespass to try title, and prayed judgment for the title and possession of the land in dispute here. The second count alleged that the plaintiffs and defendants were joint owners of the land in question; that the plaintiffs owned an undivided six-elevenths thereof, and the defendants an undivided five-elevenths thereof, and prayed judgment for partition. The third count alleged the decease of J. M. Terry and his first wife, and alleged, in substance, that the plaintiffs and the defendants were the only heirs at law of J. M. Terry, deceased; that the property above described was the separate property of J. M. Terry, deceased; and that the plaintiffs and defendants all acquired their title by inheritance from J. M. Terry, deceased. It is then alleged that the plaintiffs owned six-elevenths of the land, and that the five children of the second marriage owned five-elevenths. The petition then alleges the remarriage of the second wife to J. T. Maples, and alleges that J. T. Maples had gone into possession of the land, and was then residing thereon and claiming to be the owner thereof; that he was rendering the same in his name for taxes, and attempting to set up and establish an adverse claim to those of the plaintiffs, and that the plaintiffs feared that the said defendant, J. T. Maples, would attempt to perfect title to said land by adverse possession, and that he was attempting to do so. The petition further alleged that such action endangered the title of the plaintiffs, and that they brought such suit in the alternative, in the event it should be held that they were not entitled to recover the possession of said property or have same partitioned, that they have a judgment and decree of the court canceling any pretended claims of the defendant J. T. Maples, and that their title be recognized and established by the judgment of the court. The prayer to this count prayed judgment for the title and possession of the premises, and in the alternative prayed judgment for six-elevenths therein and for a decree of partition.

This petition contains a final alternative prayer, which is as follows: "That if they are not entitled to all such relief before mentioned, then, that they have judgment fixing their title in and to said premises, and for all such other and further relief, general and special, whether specially prayed for herein or not, that may be meet and proper to protect their rights, interests and title in and to said property and their respective interests therein, and for costs of suit and for citation as required by law, and for all of which, they will, as in duty bound, ever pray."

Each of the counts contained in the above petition are in the alternative.

The record does not contain the pleadings of the several defendants in the above suit or any of the evidence heard, but does contain the final decree. This decree discloses that J. T. Maples disclaimed any interest in the land, and judgment was rendered...