Williams v. Hardie

• Citation: 22 S.W. 399
• Parties: WILLIAMS et al. v. HARDIE et al., (CORZINE'S HEIRS, Interveners.)
• Decision Date: 18 May 1893
• Court: Supreme Court of Texas

22 S.W. 399

WILLIAMS et al. v. HARDIE et al., (CORZINE'S HEIRS, Interveners.)

Supreme Court of Texas.

May 18, 1893.

Error from court of civil appeals of second supreme judicial district.

Suit by Edward Williams and others against John T. Hardie and others, and the heirs of Shelby Corzine, interveners, to recover possession of land. A judgment that plaintiffs recover one half the land, and the interveners the other, was reversed by the court of civil appeals, (21 S. W. Rep. 267,) and the interveners bring error. Reversed.

R. B. Truly and Moore, Williams & Butts, for plaintiffs in error, heirs of Shelby Corzine. D. G. Hunt, for defendants in error, Williams and others.

GAINES, J.

This is a writ of error to the court of civil appeals of the second supreme judicial district from a judgment of that court reversing and rendering the judgment of the trial court. The action was one of trespass to try title, and was brought by Edward Williams and others, as plaintiffs, against John T. Hardie and others, as defendants. Elizabeth White and others intervened, claiming the land as heirs of Shelby Corzine and Sarah Corzine. Upon the trial of the cause the defendants showed no title, and the court gave judgment for the plaintiffs for one undivided half of the land, and for interveners for the other half. The plaintiffs appealed, and the court of civil appeals reversed the judgment of the trial court, and rendered judgment for the plaintiffs for the entire premises in controversy. The land was patented to "Shelby Corzine, his heirs or assigns," by virtue of a certificate for the unlocated balance of a former certificate issued to Nancy Ussery. The court found that the certificate belonged originally to the community estate of Shelby Corzine and Sarah Corzine, who were husband and wife, and that the interveners were their heirs. The defendants claimed under one George W. Vivian, to whom Sarah Corzine executed a purportive transfer of the certificate. The court found that that transfer, though attacked as a forgery, had been duly executed. The following is a copy of the instrument: "The state of Texas, county of Harrison. Know all men by these presents, that I, Sarah Corzine, administratrix of the estate of Shelby Corzine, by virtue of the power in me vested by the county court of San Augustine county, to execute and fulfill the contract of Shelby Corzine, deceased, do hereby assign and forever relinquish to George W. Vivian all the right, title, and interest of the late Shelby Corzine, his heirs and assigns, in and to the following described land certificate: No. 1594/1703, issued at Austin, August 23, 1850, to Shelby Corzine, assignee of Nancy Ussery, for 9,669,810 square varas, unlocated balance of head-right certificate No. 98, issued by the board of land commissioners of San Augustine county to Shelby Corzine, assignee of Nancy Ussery, for one league and labor of land, dated 1st of February, 1838; the said George W. Vivian having delivered up to me the bond of said Shelby Corzine to make title to one-half of said league and labor of land. In testimony whereof I hereunto affix my hand and seal this 12th day of June, 1855, using scroll by way of seal. [Signed] Sarah Corzine." This instrument was signed by two subscribing witnesses, and was acknowledged before a notary public in March, 1859. In addition to the foregoing, the conclusions filed by the court of civil appeals show the following facts: Shelby Corzine and Sarah, his wife, settled in San Augustine county in 1834 or 1835; he died in that county in 1839, and she died in 1870. Soon after her husband's death Sarah Corzine took out letters of administration, in San Augustine county, upon his estate. It appears that, some time between 1840 and 1850, commissioners were appointed to make partition of the estate; that they made a partition and report; and that the report was adopted. No order was found upon the minutes or among the papers of the county court of San Augustine county authorizing the administratrix to transfer the certificate; nor did any order appear closing the administration, and discharging the administratrix. It was affirmatively shown that all the probate minutes of the county had been preserved. There was testimony that the administration had been closed prior to the year 1855. The court of civil appeals concluded that no such order was made as that recited in the purported transfer of the certificate, and that at the time of its execution the administration had been closed. It was also found that there was no evidence of the existence of the bond for title from Shelby Corzine to George W. Vivian,...