Wilson v. Johnson

• Decision Date: 20 December 1900
• Citation: 60 S.W. 242
• Parties: WILSON v. JOHNSON et al.
• Court: Texas Supreme Court

Page 242

60 S.W. 242

WILSON v. JOHNSON et al.

Supreme Court of Texas.

December 20, 1900.

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

Trespass to try title by T. B. Wilson against Sam Johnson and others. From a judgment of the court of civil appeals affirming a judgment in favor of defendants, plaintiff brings error. Affirmed.

De Armond & Church, for plaintiff in error. Abernathy & Beverly, for defendants in error.

GAINES, C. J.

This suit was brought by the plaintiff in error, and, the trial having resulted in a judgment for defendants in error, he gave notice of appeal. Thereupon, for the purpose of the appeal, the parties entered into a written agreement as to the pleadings and evidence, and the question to be determined, and caused it to be approved by the trial judge. The agreement is as follows: "It is agreed in the above entitled and numbered cause that it shall be submitted on appeal to the court of appeals of the Fifth supreme judicial district of Texas upon the following statement: This is a suit of trespass to try title to a lot of land described in plaintiff's petition, originally brought against the defendant Sam Johnson, but the heirs of his wife, Mary Johnson, who died after the institution of the suit, having set up a claim of ownership, were made parties, and, together with the said Sam Johnson, answered by pleas of general denial; not guilty; that the premises sued for were the separate property of said Mary Johnson, deceased, and the homestead of herself and the said Sam Johnson at the time plaintiff acquired title thereto; limitation of 3, 5, and 10 years; and improvements made in good faith. Trial by jury, verdict in favor of defendant, motion for a new trial overruled, and appeal duly taken to court of appeals, as above, on 22d day of November, 1899. The evidence showed that plaintiff's title came through a judgment by default in favor of one of his mesne vendors against the defendant Sam Johnson for title to the premises in question. It also appeared that the premises were the separate property of the deceased, Mary Johnson, and were her homestead, in which she lived with her said husband, at the date of said judgment, and that she was not a party thereto. It also appeared that when plaintiff purchased he had no actual notice that said premises were the separate property of said Mary Johnson, deceased, the deed thereto being of record and in the name of the husband, but she was in actual possession of the premises, her husband and she remaining married, and had been since 1871, and were claiming same as their homestead. It was also proved that plaintiff as a surveyor in 1871 ran out the lines of the land in controversy at the request of said Mary Johnson, her husband being at said time in jail, and, further, that she had always paid the taxes and taken the receipt in her own name, and claimed the property as hers separately. It is agreed that the judgment, as rendered, shall be confirmed unless the court of appeals shall hold that said judgment by default was binding on said Mary Johnson, in which event the case shall...