Wilson v. Nugent

• Decision Date: 27 January 1906
• Citation: 91 S.W. 241
• Parties: WILSON et al. v. NUGENT et al.
• Court: Texas Court of Appeals

91 S.W. 241

WILSON et al. v.NUGENT et al.

Court of Civil Appeals of Texas.

January 27, 1906.

Appeal from District Court, Henderson County; B. H. Gardner, Judge.

Trespass to try title by Malinda Nugent and others against John Wilson and others.From a judgment in favor of plaintiffs, defendants appeal.Affirmed.

E. P. Miller, Jno.S. Prince, and W. R. Bishop, for appellants.Richardson & Watkins, for appellees.

BOOKHOUT, J.

This was an action of trespass to try title, which was brought by the appellees, Malinda Nugent and George R. Abernathy, and Viola Pearl Abernathy, minors, by Malinda Nugent, as their next friend, against Matthew Nugent and the appellantJohn Wilson.Plaintiffs, in their petition, alleged that Malinda Nugent was a married woman, and that her husband, defendantMatthew Nugent, refused to join her in her suit.The appellantJohn Wilson answered by plea of not guilty, and by special plea of 10 year limitation.Judgment was rendered for the plaintiffs.From this judgment defendantJohn Wilson has appealed.

The land sued for is the James A. Price pre-emption of 151 acres.Plaintiffs introduced a deed from James A. Price to John F. Abernathy to the land in controversy of date June 1, 1883.John F. Abernathy was the husband of plaintiffMalinda Nugent, and the father of plaintiffsGeorge Ross Abernathy and Viola Pearl Abernathy.John Abernathy died in January, 1899, without will, and there has been no administration on his estate.Plaintiffs also introduced in evidence a deed from James A. Price to Malinda Nugent and George Ross Abernathy and Viola Pearl Abernathy, to the land in controversy of date July, 1903.Plaintiffs also introduced in evidence a patent from the state of Texas to Malinda Nugent, Viola Pearl Abernathy, and George Ross Abernathy, to the land in controversy of date September 3, 1904.No written conveyance was shown out of John F. Abernathy, the father, or Malinda Nugent, or either of the children, Viola Pearl Abernathy or George Ross Abernathy.If there was any sale of this land by the said owners it was by parol.Appellants insist that a deed was unnecessary to constitute a valid conveyance of the Price pre-emption.

It is held that a deed in writing is not essential to a transfer of a pre-emption claim before patent issues, but that a verbal sale of such claim to a purchaser, who immediately becomes the occupant, is sufficient.Bledsoe v. Cains, 10 Tex. 455;Hickman et al. v. Withers, 83 Tex. 575, 19 S. W. 138.In the cases in which this ruling was made, the pre-emptor had not been in possession of the land three years and his occupancy had not been of a sufficient length of time to entitle him to the land.In such a case the pre-emptor has only a claim to the land, and it is held a deed is not necessary to a sale of such claim where the vendee enters into actual possession.But in this caseJohn Abernathy had more than a claim to the land.James A. Price filed upon and surveyed the land, and occupied it as the head of a family for 10 years, and up to 1883, and sold it to John F. Abernathy, June, 1883, by deed.John Abernathy and family occupied the land for four consecutive years.This land was duly patented to his wife and children.James Price, prior to his sale to John Abernathy, had fully met and performed all the requirements of the statute entitling him to a patent for the land.His right to the land had become vested and was of a higher dignity than a claim to the land.He was in effect the owner of the land and a conveyance in writing was necessary to pass his title.This court has held that an equitable interest in land can only be divested by an instrument in writing.Clitus v. Langford(Tex. Civ. App.)24 S. W. 325.We think it clear that a deed in writing was necessary to a valid conveyance by John Abernathy to S. H. Costellow.Johnson v. Simpson(Tex. Civ. App.)54 S. W. 309.

The defendants plead the 10-year statute of limitation, and it is here contented that there was evidence tending to support this issue; and hence it was error to instruct a verdict for plaintiff.The only evidence as to the character of the sale made by John Abernathy to S. H. Costellow of the James Price pre-emption is the testimony of Costellow as follows: "I contracted for the purchase of said land with John Abernathy.Paid part of the purchase price, and there remained unpaid when I left it, one 500-pound bale of lint cotton.One year after leaving said land I...