Vann v. Denson.

• Decision Date: 26 May 1909
• Parties: VANN et al. v. DENSON et al.
• Court: Texas Court of Appeals

120 S.W. 1020

VANN et al. v. DENSON et al.

Court of Civil Appeals of Texas.

May 26, 1909.

Rehearing Denied June 23, 1909.

Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.

Action by W. B. Denson and others against R. W. Vann and others. From a judgment for plaintiff and in part for one of defendants, part of defendants appeal. Affirmed except as to one of defendants, as to whom judgment is reversed and rendered.

P. E. McMahon, A. T. McKinney, and G. W. McKellar, for appellants.

FLY, J.

The appellees in this case brought this action of trespass to try title to 576 acres of land out of the Harmon H. Holliman survey, against R. W. Vann, J. W. Moyer, Louisa H. Moyer, J. H. Holliman, Hattie B. Stone, S. P. Stone, and A. R. Hamblin. The cause was tried by jury, and a verdict rendered in favor of R. W. Vann for 30 acres of land and his improvements, and for appellees for the balance of the land sued for, and judgment was accordingly so rendered. This appeal is perfected by J. H. Holliman, Hattie B. Stone, S. P. Stone, A. R. Hamblin, and R. W. Vann, the latter giving an appeal bond separate from the rest. R. W. Vann pleaded not guilty, and claimed 160 acres of the land by 10 years' limitations, and the other appellants excepted to the petition and Vann's answer, pleaded not guilty, and pleaded the coverture of Mrs. Harriet B. Stone and Mrs. Lou Moyer in bar of Vann's claim. Appellees pleaded the coverture of Mrs. Mary W. Montgomery and the minority of Helen E. Montgomery, Margaret W. Montgomery, and Edward L. Montgomery in bar of the plea of limitations on the part of Vann.

We will first consider the assignments of Holliman, Stone, and Hamblin. The court admitted in evidence, over the objections of the appellants, except Vann, a deed from W. B. Denson as agent for W. M. Goodrich to 200 acres of land off the Viesca survey, while the suit was for 576 acres patented to Harmon H. Holliman, assignee of the Buffalo Bayou, Brazos & Colorado Railroad Company. It would seem that the deed was introduced to show what the consideration was for the transfer of the certificate upon which the land in controversy was located. There was no necessity for the introduction of the deed, for W. B. Denson testified to the same facts, and no bill of exceptions was reserved to his testimony. The statement under this assignment was so inadequate that a strict enforcement of the rules would have denied it consideration. Reference to the record without a statement in substance of the necessary facts is not sufficient. Bayne v. Denny, 21 Tex. Civ. App. 435, 52 S. W. 985; Railway v. Olds (Tex. Civ. App.) 112 S. W. 787.

It was proper to prove that the heirs of Louisa A. Holliman, who are appellants herein, with full knowledge of the fact that the land certificate was traded by their mother after the death of their father to Denson for 200 acres out of the Viesca grant, afterwards joined in a sale of the land. Such facts showed that they inherited property from their mother, and tended to create an estoppel against them in regard to any claim that their mother was not authorized to sell the certificate. The deed from Denson, as agent for Goodrich, to Louisa Holliman recited that the land was conveyed in consideration of a land certificate for 640 acres. By his deed to Garvey, J. H. Holliman and Stone and wife ratified the act of Mrs. Louisa Holliman in selling the certificate, and they cannot now be heard to question her authority in the premises. Lindsay v. Freeman, 83 Tex. 259, 18 S. W. 727; Corzine v. Williams, 85 Tex. 499, 22 S. W. 399. The warranty in the transfer not only estopped Mrs. Holliman, but her heirs who inherited from her. This disposes of the second, third, and fourth assignments of error. In the transfer of the certificate by Louisa A. Holliman to Goodrich, she gave a full warranty to the whole certificate reciting therein: "I, the said widow of said Holliman, having full authority and charge of his estate, have done this act for the considerations named and for other considerations to me deemed satisfactory." That transfer was executed and acknowledged on September 12, 1871, and was placed on record on September 21, 1871. The transfer was made about four or five years after the death of H. H. Holliman, who was the husband of Louisa A. Holliman. The warranty given by Mrs. Holliman extended to the whole of the certificate. The warranty of Mrs. Holliman would estop her heirs from setting up a title to the land located under the certificate sold and warranted by her. By taking possession of and selling the land their mother received for the certificate, they became liable on her warranty, and if they recovered the land from appellees they would be liable on her warranty for the failure of the title. Gould v. West, 32 Tex. 338; Crain v. Wright, 60 Tex. 516....