Towery v. Henderson

• Decision Date: 02 November 1883
• Docket Number: Case No. 4030.
• Parties: THOMAS J. TOWERY v. MATTIE HENDERSON ET AL
• Court: Texas Supreme Court

60 Tex. 291

THOMAS J. TOWERY

v.MATTIE HENDERSON ET AL

Case No. 4030.

Supreme Court of Texas.

Nov. 2, 1883.

APPEAL from Lamar. Tried below before the Hon. R. R. Gaines.

Trespass to try title by Mrs. Mattie Henderson, joined by her husband, Travis Henderson, and by Travis Henderson as guardian for the minor Ella Thomas, to recover from one of the appellants, Thomas J. Towery, a lot of ground in the town of Paris, Lamar county. The plaintiffs gave bond and sequestered the property. The plaintiffs claimed title by virtue of a deed from H. D. Woodsworth by J. R. Woodsworth, attorney in fact, dated December 1, 1874. (This was a quitclaim.)

April 2, 1877, defendant filed an amended answer pleading the statute of limitations of ten years, and claimed the property in right of his wife. He claimed, also, that before the plaintiffs' purchase from Woodsworth, his wife had purchased whatever interest Woodsworth may have had, and that of this purchase plaintiffs had notice when they bought.

Plaintiffs amended by averring that they had a perfect chain of title from the government down to Woodsworth and from Woodsworth to themselves. They further pleaded in estoppel that on the day of their purchase from Woodsworth, and before that, the defendant and his wife had both admitted that they had no title to the land, and had tried to purchase from Woodsworth; and that plaintiffs, relying on these acts and admissions, had bought and paid for the land, which they would not have done but for such admissions.

April 15, 1878, Mrs. Frances J. Towery (having been made a party defendant upon her own motion) filed her answer, and, adopting so much of the pleadings of her co-defendant as asserted title in her by limitation, averred that in 1850 her father, John Johnson, bought the lot in controversy from H. D. Woodsworth and went into actual possession, inclosed the lot, and used and claimed it openly and notoriously against all the world until his death in 1852; that after the death of her father, John Johnson, she and her co-defendant took immediate possession of the property, and by themselves, their agents and tenants, had held the peaceable and adverse possession thereof until the filing of this suit, and then pleaded the statute of limitations of ten years. They also pleaded the peaceable, adverse and exclusive possession of the property for more than ten years, and the non-entry of plaintiffs or their vendor, said Woodsworth.

Plaintiffs filed exceptions to the last pleading of defendants, which do not appear to have been acted on by the court.

October 16, 1879, the cause was tried before a jury, and judgment rendered for plaintiffs. Defendants appealed in forma pauperis.

The title of plaintiffs was as follows: 1st. Patent to Larkin Ratten. 2d. Deed from Ratten to G. W. Wright. 3d. Deed from Wright to Woodsworth. 4th. Quitclaim from Woodsworth, by J. R. Woodsworth, attorney in fact, to plaintiffs, dated December 1, 1874; consideration recited $250. 5th. Power of attorney from H. D. Woodsworth and wife to J. R. Woodsworth, authorizing him to sell any lands they might own in Texas.

The evidence for the defense was substantially as follows: John Johnson (the father of defendant Frances and the maternal grandfather of plaintiffs) had possession of the lot in 1850, claiming to have purchased it from H. D. Woodsworth, who then lived in Paris, but moved to Missouri in 1852. Johnson had the lot inclosed, and used it in connection with a hotel which he owned up to his death, in 1852, when the hotel and the lot were occupied by the defendants until the hotel was partitioned between defendant Frances and the mother of plaintiffs. The lot was not partitioned, as there was no written title; but defendants kept possession of the lot until 1854, when they placed one Smith in possession, with the agreement that he should hold it for them, and have the use of it for paying the taxes. Defendants meanwhile moved away, and were absent until 1867. Smith held the lot for some time, when he turned it over to one R. B. Francis, who held it for defendants on the same terms until his death, and afterwards his family continued to hold it on the same terms until the return of defendants in 1867, when it was restored to them. They immediately took possession, built a house upon it, and lived on it until the filing of this suit, February 15, 1875. These facts were proven substantially by several witnesses.

Mrs. Towery, in her testimony, stated that they took possession as heirs of her father, and that it was held by them for herself and her sister, the mother of plaintiffs. One witness stated that Johnson, while in possession of the lot, told him he had bought it from Woodsworth and gave him $25 for it.

H. S. Bennet, for defendants, testified that in 1860 he tried to buy the lot from Francis, who then had possession, but Francis told him he could not sell; he was holding as agent of another person.

W. Babcock testified that in 1862 he called on Francis to buy some lots. Francis showed him a number of lots, and among them the lot now in suit. Francis offered to sell him this lot, and his best recollection is that Francis claimed it as his own. Francis offered him another lot, which he said he did not own, but was authorized to sell.

Concerning the purchase of the lot from Woodsworth in 1874 the testimony was conflicting.

Defendant Towery testified that he had heard that Woodsworth set up some claim to the lot. In 1874, when J. R. Woodsworth came to Paris, witness went to see him to buy whatever title he might have in order to quiet his (defendant's) title and avoid a law suit; the property was worth $800. Witness offered $200, and Woodsworth agreed. They went to a lawyer's office; had the deed drawn up. It was signed by W. and delivered to witness. A note for $200 and a deed of trust was signed by witness and delivered to W. Witness then handed the deed to W. in order that he might acknowledge it for record, and they started together to the clerk's office for that purpose. On the way they met Travis Henderson, one of the plaintiffs. Witness introduced Henderson to W. Henderson took W. aside and had a talk with him. W. after that refused to acknowledge or return the deed, but kept it and the note and deed of trust. Woodsworth testified by deposition. He agreed with Towery as to the making of the contract of sale,-- the price,--going to the lawyer's office,--the signing of the deed by him,--the signing and delivery of the note and deed of trust to him, but said he did not deliver the deed to Towery, because he discovered in the office that Towery was trying to swindle him. When he conveyed to Mrs. Henderson, he left with her or her attorneys the note and deed of trust of Towery.

The attorney testified to the visit to his office, the drawing up and signing of the papers, and their leaving together for the clerk's office; but can't remember who had the deed when they left.

Travis Henderson testified that he tried to get Towery to buy from Woodsworth in connection with him, Towery to pay half for his wife, and he to pay half for his ward, Miss Thomas. Towery refused, and he would then have no more to do with it, and went away, but told Woodsworth that his wife wished to see him. When he came back he...