Whitaker v. Shenault

• Decision Date: 16 December 1914
• Docket Number: (No. 5367.)
• Citation: 172 S.W. 202
• Parties: WHITAKER et al. v. SHENAULT et al.
• Court: Texas Court of Appeals

172 S.W. 202

WHITAKER et al. v. SHENAULT et al.

(No. 5367.)

Court of Civil Appeals of Texas. San Antonio.

December 16, 1914.

On Motion for Rehearing, January 13, 1915.

Appeal from District Court, Bexar County; W. F. Ezell, Judge.

Action by Emily Whitaker and others against Amanda Shenault and another. From a judgment for defendants, plaintiffs appeal. Affirmed, and motion for rehearing and for additional findings overruled.

James Raley, of San Antonio, for appellants. Joel A. Lipscomb, of San Antonio, for appellees.

CARL, J.

This suit was brought by Emily Whitaker, John Chapman and Levina Chapman, and Louisa Marshall, appellants, against Amanda Shenault and Adeline Shenault, appellees, to establish the interest of plaintiffs in the north one-half of lot 5 in block 3, New City block 331, on Concho street in San Antonio, Bexar county, Tex., and to partition same. It is alleged that appellants and appellees are heirs at law of Sidney Shenault and are equal owners of the lot; the share of each being one-sixth. They claim as heirs of Sidney and Adeline Shenault. Appellees answered denying that appellants are heirs of Sidney Shenault or that parties hereto had a common ancestry, and further denying that Adeline Shenault, mother of plaintiffs, ever had any interest in or title to the property in question. Appellees also pleaded ten years' limitation, improvements made in good faith and payment of taxes for a period of about 30 years, and prayed, not only that the plaintiffs take nothing, but that they be quieted in their title to the lot. The trial was before the court, without a jury, and no findings of fact and conclusions of law are filed.

Before her marriage to Shenault, Adeline Shenault had four children—two boys and two girls — and they went by the name of "Chapman." They are the appellants in this cause, except Levina, who is the daughter of Charlie Chapman, the son who died. Appellees are the fruits of the marriage of Sidney Shenault and Adeline Shenault. Sidney Shenault survived his wife, Adeline, some six or eight years, and the property in question was conveyed to him by deed from F. Gilbeau, dated March 26, 1874. The case was tried May 26, 1914, 40 years and 2 months after the deed was made to Shenault. According to Louisa Marshall's testimony, Shenault married her mother about 38 years prior to the trial, or 2 years after the execution of the deed to Shenault. Emily Whitaker testified that Shenault and her mother married between the births of Amanda and Adeline; that Amanda was born prior to the marriage. The testimony of these witnesses agrees fairly well with that of Amanda to the effect that at the time of the trial she thought she was 38 years of age and Adeline 36. It is clear that the court could well have found that the property was acquired by Shenault about 2 years prior to his marriage to appellants' mother. The mother, Adeline Shenault, died about October 23, 1888. Amanda Shenault was 16 or 17 years of age at the time her father died, and Adeline is 2 years younger than she is. At the time of Sidney's death, appellees were living on the property, and they have continued to either live on it or rent it out ever since, and no claim was ever made by appellants to any interest in it until this suit was filed. During that time, appellees have paid taxes thereon, have asserted ownership thereto, and have made valuable improvements thereon. The taxes were not paid as they accrued, because the children were too young, but about three years before the trial they began paying up the taxes, and Amanda says that when she got the taxes paid up the suit was then filed.

There is evidence tending to show that when Sidney Shenault bought the lot he gave a note of $300, which was not paid, however, until some years after Adeline died. She, it seems, did not think it necessary to pay the note for two very good reasons: First, because it would just leave something for the children to fuss over; and, second, she said she had...