Vinson v. W. T. Carter & Bro.

• Decision Date: 20 November 1913
• Citation: 161 S.W. 49
• Court: Texas Court of Appeals
• Parties: VINSON et al. v. W. T. CARTER & BRO. et al.

161 S.W. 49

VINSON et al. v. W. T. CARTER & BRO. et al.

Court of Civil Appeals of Texas. Texarkana.

November 20, 1913.

Appeal from District Court, Tyler County; W. P. Powell, Judge.

Trespass to try title by John F. Vinson and others against W. T. Carter & Bro., and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

V. A. Collins, of Beaumont, for appellants. Baker, Botts, Parker & Garwood, of Houston, Joe W. Thomas, of Woodville, and C. L. Carter, of Houston, for appellees.

LEVY, J.

The action was by appellants against appellees in trespass to try title to about 388 acres of land out of the southeast corner of the 1555-acre tract in the Tatman league. The appellants were the heirs of R. N. Dicken, to whom U. M. Gilder conveyed the same land on October 16, 1863. The appellees pleaded not guilty and vouched in their warrantor. The appellees claimed the land under deed from the heirs of Wm. Minter. The case was tried to a jury, and upon the conclusion of the testimony the court directed a verdict in favor of the appellees.

The appellees object to consideration of the assignments as presented by appellants in their brief, and the objection must be sustained for the reasons so given, except as to the second assignment in the brief, which is, we think, supported by a motion for new trial. The effect of the second assignment is to predicate error upon the action of the court in peremptorily instructing a verdict for appellees. The precise contention of error is that the recitation in the deed from Wm. Minter and wife to U. M. Gilder, of date March 11, 1863, recites the payment of the purchase money for the land, and there is not any evidence to show that the recitation in the deed is not correct, and therefore the appellees, as a matter of law, had failed to show title against the appellants. The evidence established that on the 11th day of March, 1863, Wm. Minter and wife, who were the owners, conveyed to U. M. Gilder a tract of 1555.9 acres of land, part of the N. Tatman league (which tract involves the land in controversy), and by the same conveyance a tract out of the Ann Fisher league in the same county; the consideration recited being $3,661 in hand paid. On the same date of March 11, 1863, Wm. Minter executed a bill of sale to U. M. Gilder for a number of negro slaves, wagons, mules, horses, and oxen for a consideration recited of $42,440 in hand paid. On the same date of March 11, 1863, U. M. Gilder executed three notes payable to Wm. Minter, aggregating $25,471.12. On the same date of March 11, 1863, U. M. Gilder and wife executed a mortgage to Wm. Minter, to secure the identical three notes mentioned, on the same land described in the deed of the same date, and including other lands, and on the same personal property covered by the bill of sale. The deed and the mortgage were both filed for record in the county clerk's office on the same day and recorded in the same record book on consecutive pages. On January 6, 1866, U. M. Gilder having defaulted in the payment of these notes, Wm. Minter filed suit thereon in the district court of Tyler county, seeking to enforce the mortgage upon the land and asking that it be sold to satisfy the lien. It appears that to this action defendants U. M. Gilder and wife answered setting up in substance a failure of consideration by reason of the emancipation of the negroes, and asking a rescission of the contract as follows: "Defendants here tender the said negroes or persons of color as mentioned in said mortgage purchased from the said Minter, plaintiff, together with all of the property purchased from the said plaintiff at the time the negroes were purchased, and asks that said contract based upon said mortgage and the promissory notes be canceled and that said mortgage be declared null and void and of no effect." And the defendants in that suit also sued in reconvention to recover back $23,000 paid on the contract of purchase on March 11, 1863. It appears that this suit continued on the docket of the court for some years thereafter; and Gilder and wife having died, their heirs were made parties defendant by scire facias; and Minter and his wife having died, their heirs were properly made parties plaintiff. The plaintiffs in that suit, the heirs of Minter, on December 22, 1884, filed their amended petition...