Threadgill v. Bickerstaff

• Decision Date: 11 February 1895
• Citation: 29 S.W. 757
• Parties: THREADGILL v. BICKERSTAFF et al.
• Court: Texas Supreme Court

29 S.W. 757

THREADGILL v. BICKERSTAFF et al.

Supreme Court of Texas.

February 11, 1895.

Error to court of civil appeals of Third supreme judicial district.

Action by J. B. Bickerstaff and Frances Bickerstaff against G. H. Threadgill. From an affirmance by the court of civil appeals (26 S. W. 739) of a judgment of the district court for plaintiffs for the land, and for defendant for $500 improvements, defendant brings error. Affirmed.

Rice, Patrick & Scott and Williams & Evans, for plaintiff in error. J. A. Martin, for defendants in error.

BROWN, J.

Hiram Baker was the common source of title in this case. The plaintiffs claim that, in 1852, Hiram Baker made to Seaborn Bickerstaff, their ancestor, the following instrument of writing: "State of Texas, Hopkins County. Know all men that I, Hiram Baker, for the consideration of ($332) three hundred and thirty-two dollars, the receipt is hereby acknowledged, do hereby transfer all my right and title to the above obligation, hereunto annexed (given unto Hiram Baker aforesaid), unto Seaborn Bickerstaff, of Titus county, his heirs and assigns, and by these presents hereby relinquish unto the said Seaborn Bickerstaff all the privileges thereunto belonging unto him, the said Seaborn Bickerstaff, to have and to hold the same unto him, the said Bickerstaff, forever. In testimony whereof I hereunto set my hand and seal, with a scroll, this the 28th day of August, 1852. [Signed] Hiram Baker. Witness: Lucy Ann Cullom." The above instrument was attached with sealing wax to a deed from Henry Bickerstaff to Hiram Baker, conveying to him the land in controversy. The deed from Henry Bickerstaff to Hiram Baker, which was attached to the above instrument, after conveying the land, concluded in these words: "I, the said Henry Bickerstaff, bind myself, my heirs and legal representatives, to give and execute a deed in fee of the parcel aforesaid, hereby conveyed to Hiram Baker and his legal representatives, as soon as the deed for the same may be obtained from the state." The plaintiffs below were the wife and child, only heirs of Seaborn Bickerstaff, and Caroline E. Cary was the wife of Hiram Baker (she having married since his death), and Horace Baker and C. C. Baker were his children. The three conveyed the land by deed to W. A. Patrick, which, after reciting the payment of the consideration, proceeds: "Do by these presents bargain, sell, release, and forever quitclaim unto the said W. A. Patrick, his heirs and assigns, all of our right, title, and interest in and unto that tract or parcel of land lying in the county of Falls and state of Texas, described as follows: An undivided interest of 83 1/3 acres out of 200 acres off the south end of the Samuel Greeg survey, beginning," etc.; giving the field notes, and concluding: "To have and to hold the said premises, together with all the rights, privileges, and appurtenances to the same, in any manner belonging, unto the said W. A. Patrick, his heirs and assigns, so that neither we, nor the grantors, nor our heirs, nor any person or persons claiming under us, shall at any time hereafter have, claim, or demand any right or title to the aforesaid premises or appurtenances, or any part thereof." Signed by the parties, and acknowledged. The deed from Henry Bickerstaff, and the assignment or transfer thereof to Seaborn Bickerstaff, were not acknowledged or proved for record, but were in fact recorded. The court excluded the deed from Mrs. Cary and the Bakers to Patrick for alleged defects in the certificate of acknowledgment. A deed from Horace and C. C. Baker to B. H. Rice, of a similar import, though not in all terms the same, was also excluded by the court for similar reasons, but no complaint is made in this court of the action of the court upon that instrument. It appears that defendant claimed part of the land under the latter deed. Defendant claimed that he had possession in good faith for more than a year before the institution of the suit, and had made valuable improvements thereon. Upon trial, judgment was rendered for plaintiffs for the land, and for defendant for $500 for improvements, which judgment, upon appeal, was affirmed by the court of civil appeals.

Plaintiff in error asserts that the instrument made by Henry Bickerstaff to Hiram Baker, and the transfer of that paper by the latter to Seaborn Bickerstaff, did not convey title to the latter, and that, if any title passed, it was an executory and equitable title, and this action is barred as a stale demand. The location of the land, and the return of the field notes to the general land office, vested in Henry...