Thompson v. Swann

• Decision Date: 07 May 1896
• Citation: 35 S.W. 828
• Parties: THOMPSON et al. v. SWANN et al.
• Court: Texas Court of Appeals

35 S.W. 828

THOMPSON et al. v. SWANN et al.

Court of Civil Appeals of Texas.

May 7, 1896.

Appeal from district court, Smith county; Felix J. McCord, Judge.

Action by Susan E. Thompson and others against A. J. Swann and others. Judgment for defendants. Plaintiffs appeal. Reversed in part.

Ben B. Cain, for appellants. C. G. White, for appellees.

GARRETT, C. J.

This was an action of trespass to try title, brought by the appellants to recover of the appellees a portion of a one-third league of land granted to Daniel Minor by the state, and situated in Smith county. The defendant Elias Jones claimed in his answer a tract of 150.3 acres of the land, which was fully described by him, and disclaimed title as to the balance. He pleaded as to this tract the statute of five years' limitation, and this defense was fully sustained by the evidence. Judgment was rendered by the court below in favor of all the defendants. As to the defendant Elias Jones, the judgment should be affirmed upon his plea of limitation. Appellants deraigned their title to the land as follows: (1) Patent from the state of Texas to Daniel Minor, as survey No. 1,045, abstract No. 644, patent No. 456, volume 16, dated August 27, 1861, by virtue of certificate 446. The patent was filed for record in the record of deeds for Smith county January 9, 1874, and recorded January 10, 1874. (2) A transfer of the certificate by virtue of which the land was patented by Daniel Minor to Abram H. Scott, dated May 17, 1837, and recorded in Nacogdoches county May 15, 1837. (3) A transfer of the certificate by Abram H. Scott to Niles F. Smith, dated October 2, 1837, and filed for record in Nacogdoches county October 2, 1837, reciting a consideration of $500 paid. The above transfers appear to have been recorded also in Smith county, but the date of record in that county is not stated. Copies from the record were used in evidence, and plaintiffs admitted that they did not have, and had never had, the originals in their possession, and did not know whether they were in existence or not. (4) A deed from Niles F. Smith to his son, Niles H. Smith, dated October 10, 1856, by virtue of which he conveyed to him a number of tracts of land and land certificates, and "all lands or other property that may hereafter be discovered to be mine, or any part thereof," etc. This deed was filed for record in Smith county on the 20th day of July, 1892. Plaintiffs did not produce the original, but it was in evidence before the court, having been found, subsequent to the institution of the suit, by the attorney of defendants, among the papers of Niles F. Smith in the possession of the widow of his son, Niles H. Smith. (5) Plaintiffs further deraigned title down to themselves by deed and mesne conveyances from Niles H. Smith after the land had been patented. Defendants deraigned title from one William Davenport down to themselves. They put in evidence a certified copy of an agreement between William Davenport and one William H. Carter, dated April 20, 1858, which recited that in consideration of the location of the Daniel Minor certificate for one-third of a league by said Carter, Davenport bound himself to make said Carter a deed in fee simple to 123 acres of the one-third league, it being one-sixth part of one-half thereof, and to make him a quitclaim to one-sixth of the remaining one-half. They introduced the surveyor's record to show that the land was surveyed February 23, 1858. Among the papers found among the effects of Niles F. Smith, as above stated, was the statement of an account, dated 20th February, 1837, showing a transaction by which Niles F. Smith had sold one H. W. Carter a number of land...