Weems v. Watson

• Citation: 40 S.W. 722
• Parties: WEEMS et al. v. WATSON et al.
• Decision Date: 10 May 1897
• Court: Supreme Court of Texas

Page 722

40 S.W. 722

WEEMS et al. v. WATSON et al.

Supreme Court of Texas.

May 10, 1897.

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

Action by S. C. Watson and others against E. Roberts and others to try title to land. Judgment for plaintiffs and also a judgment for defendants Roberts and Roberts against defendants Weems and Waldo. Error by Weems and Waldo was dismissed in court of civil appeals (39 S. W. 135), and they bring error. Reversed in part.

Ewing & Ring and J. C. Baldwin, for plaintiffs in error. Ed J. Hamner, Foster & Scott, and H. G. McConnell, for defendants in error.

DENMAN, J.

Plaintiffs below, 49 in number, including Gertrude Watson, brought an action of trespass to try title to recover from Roberts and Roberts title and possession of one-third of a league of land in Haskell county, together with rents thereof. Roberts and Roberts answered: (1) Not guilty; (2) statutes of limitations of three, five, and ten years; (3) improvements in good faith; (4) they set up their title alleging that plaintiffs were setting up some claim to the land, and asked that on the trial plaintiffs' claim be canceled as a cloud upon their title; (5) that they purchased the land from Weems and Waldo for a stated consideration paid, the latter warranting the title to them against the claims of all persons claiming or to claim the same, or any part thereof; wherefore, in the event of loss of the land, they prayed for judgment against said warrantors. Weems and Waldo adopted as their own said answer of Roberts and Roberts. On the trial the jury found a verdict for the plaintiffs for the land, valuing same at three dollars per acre, and in favor of Roberts and Roberts under plea of improvements in good faith for $3,055.15, and in favor of Roberts and Roberts against Weems and Waldo on the warranty for the full amount of purchase money, with interest from date of payment. Upon this verdict the court rendered judgment for the plaintiffs for title and possession of the land and all costs against Roberts and Roberts, ordering that no writ of possession should issue for one year unless plaintiffs should pay to the clerk of the court, for Roberts and Roberts, said $3,055.15, with interest from date of judgment; and that, if plaintiffs should neglect to pay same for one year, and Roberts and Roberts should, within six months after the expiration of such year, pay said clerk for plaintiffs, $4,428 (that being the value of the land at $3 per acre), then said plaintiffs should be forever barred from their writ of possession, and from ever having or maintaining any action against defendants, their heirs or assigns, for the land. It was further ordered that Roberts and Roberts recover from Weems and Waldo $5,741.55, that being the amount of purchase money and interest to date of judgment, for which amount execution was ordered.

Within one year from the date of this judgment Weems and Waldo filed in said cause, with the clerk of the district court trying same, their petition for writ of error, in substance as follows: "The petition of B. F. Weems and J. Waldo, complaining of [here follow names and residences of all plaintiffs and the defendants in the court below, with the exception of plaintiff Gertrude Watson], represent that heretofore, to wit, on December 10, 1895, the parties heretofore mentioned except Roberts and Roberts, in cause number 176 pending in this court, styled `Watson et al. vs. Roberts et al.,' recovered a judgment against the said Roberts and Roberts for the title and possession of one-third league of land. [Here follows description of the land.] Said judgment further provided for the adjustment of improvements, and for all costs; that in same suit Roberts and Roberts recovered judgment against these petitioners on their warranty for the sum of $5,741.55, with interest at six per cent., which said cause these petitioners desire to remove to the court of civil appeals for revision and correction, as they charge that there were divers errors committed by the court during the trial of said cause. These petitioners further show to the court and clerk thereof that they have filed herewith a supersedeas bond, as required by law, and, if execution has been issued on said judgment, they pray that a supersedeas be issued to stay the same until the final determination of this suit by the court of civil appeals. * * * Wherefore petitioners pray for the necessary process to perfect their writ of error, and to stay the enforcement of said judgment. J. C. Baldwin, Ewing & Ring, Attorneys for B. F. Weems and J. Waldo." At the same time Weems and Waldo filed with said clerk in said cause their bond, in substance as follows: "Whereas, in the above-entitled cause, on the 10th day of December, 1895, the said [here follow names of all plaintiffs, including Gertrude Watson] recovered judgment against the defendants Roberts and Roberts for the recovery of the title and possession of one-third of a league of land [here follows description of land], and defendants Roberts and Roberts recovered judgment against defendants Weems and Waldo for the sum of $5,741.55 and interest on their warranty, from which judgment the said Weems and Waldo have taken out a writ of error to our court of civil appeals for the Second supreme judicial district of Texas, and desire to suspend the execution of the judgment: Now, therefore, we, B. F. Weems and J. Waldo, as principals, and ____ and ____, as sureties, acknowledge ourselves bound to pay to [here follow names of all the plaintiffs, including Gertrude Watson and the names of the defendants Roberts and Roberts] the sum of $12,500, conditioned that said B. F. Weems and J. Waldo shall prosecute their writ of error with effect, and, in case the judgment of the supreme court or court of civil appeals should be against them, they shall perform its judgment, sentence, or decree, and pay such damages as said court may award against them; conditioned, further, that in case the judgment is affirmed, they will pay the defendants in error the value of the rent or hire of such property in any suit which may be brought therefor,"—signed by principals and sureties. At the same time said Weems and Waldo filed with said clerk in said cause their assignments of error attacking upon various grounds: (1...