Yancy v. Batte

• Decision Date: 01 January 1877
• Citation: 48 Tex. 46
• Parties: DAVID YANCY ET AL. v. W. C. BATTE (NEXT FRIEND) ET AL.
• Court: Texas Supreme Court

48 Tex. 46

DAVID YANCY ET AL.

v.W. C. BATTE (NEXT FRIEND) ET AL.

Supreme Court of Texas.

1877.

APPEAL from Titus. Tried below before the Hon. James H. Rogers.

July 2, 1873, Mary A. Grigg, Richard B. Grigg, and John H. Grigg, by W. C. Batte, their next friend, brought suit in the District Court of Titus county against David Yancy, Sr., W. H. C. Yancy, David Yancy, Jr., and L. W. Yancy, for one half interest in a tract of 1,000 acres of land claimed by the defendants.

The plaintiffs alleged, substantially, that they were the only children of H. C. Grigg and his wife, Mary A. Grigg, who intermarried in 1850; that on August 23, 1851, said H. C. Grigg bought and acquired title in the land sued for; that they immediately moved upon the place, and occupied it as their homestead; that they made large and valuable improvements thereon, a farm of 300 acres, dwellings, cotton-gins, &c.; that in 1858, Mary A. Grigg, mother of plaintiffs, died intestate; that a large quantity of community property passed into the hands of the surviving husband, and that the community was not indebted; that in 1859, H. C. Grigg married a second time, and continued to reside upon said land until January 22, 1862, when he, joined by his second wife, sold the said tract to the defendant David Yancy, for $4,750; that from that date said David Yancy and the other defendants had occupied the same, claiming the whole tract, taking and using the rents, &c.; that plaintiffs had never received anything from the estate of their mother.

Prayer was for partition, and for damages in rents for half the said property.

The defendants pleaded not guilty; purchase and payment of purchase-money in good faith from H. C. Grigg, in possession, and having the legal title; suggested good faith and permanent improvements; specially pleaded that plaintiffs inherited property from their father largely in excess of the community interest of their mother in the land sued for, claiming protection of the warranty by the father in his deed executed 22d of January, 1862, to defendant David Yancy, Sr.

In replication, plaintiffs alleged that they had received no assets from their father's estate, and that the consideration paid their father for the land was in Confederate money.

The testimony adduced by the plaintiffs was as follows:

1. Deed by W. C. Batte to H. C. Grigg, of date August 23, 1851, for the land in controversy, in consideration of $1,500 recited as paid.

2. Deed from H. C. Grigg and his wife, Rebecca V. Grigg, to David Yancy for the same land, of date January 22, 1862, in consideration of $4,750 recited as paid. Deed with covenant of general warranty.

3. W. C. Batte testified that the plaintiffs, Mary A., Richard B., and John H. Grigg, are the only children of H. C. Grigg, deceased, and also the only children of Mary A. Grigg, the first wife of H. C. Grigg; and that they are the children of the first coverture of H. C. and Mary A. Grigg; that said Mary A. Grigg was a Miss Tucker, and that after their marriage, in 1851, and after they had permanently settled in Texas, the said H. C. Grigg purchased of witness the tract of land in controversy at the price of $1,500, said land being then unimproved; that Grigg and his first wife and one of the plaintiffs, then an infant, immediately entered upon said land, and occupied it as their homestead; made large, permanent, and valuable improvements thereon, to wit, a two-story framed dwelling-house, well finished, kitchen and necessary out-houses, and tenement houses for slaves, stables, cribs, &c., a farm of 300 acres, cleared, fenced, and in cultivation; that said Grigg and his first wife continued to reside on and use said place as their homestead--the other two plaintiffs being born on it--until August, 1858, when said Mary A. Grigg, mother of plaintiffs, died on the place; that long before her death the fifteen hundred dollars purchase-money of the place had been fully paid off and discharged to witness by said H. C. Grigg.

After the death of said Mary A., the mother of plaintiff, said H. C. Grigg and his children (the plaintiffs) continued to reside on said place as their only home; that in 1859, about a year after said Mary A. died, H. C. Grigg went on a visit to Virginia, (borrowing money to go on,) and there married his second wife, Rebecca V. Grigg, and he brought her to his said home in Texas, where they and his three minor children resided as their home until January, 1862, when he and his said second wife made a deed for the place to the defendant David Yancy. Soon afterwards, H. C. Grigg left the State as a soldier, and in the year 1863 he died in Mississippi. He left no children by the second marriage. Plaintiffs, at his death, were left in charge of their step-mother, who took them to Virginia, the fall of 1863. The widow and one of the plaintiffs are still in Virginia; the other two have returned to Texas, and have been living at witness' house. The oldest is a confirmed invalid, and none of them have any means of support whatever, except that furnished by the charity of their friends. They (nor any of them) have not received anything from the estate of either parent.

David Yancy paid for the place after Grigg left the State to go to the war, and paid in Confederate money to the wife, R. V. Grigg.

There was no administration on the estate of Mary A. Grigg, and none on that of H. C. Grigg, until after the war was ended.

When Mary A. Grigg died, the estate of herself and said H. C. Grigg was solvent, and free of debt. After his first wife died, H. C. Grigg became rapidly involved in debt; borrowed large sums of money; expended a great deal in his visit to Virginia, and otherwise. In 1859 and 1860, he borrowed of witness, and others, large sums, the amount of which witness cannot state.

When H. C. Grigg died, there was no estate of the second community; and his whole estate, both separate and community, of both marriages, was insufficient to pay his outstanding indebtedness.

A portion of the money paid by defendant Yancy to Mrs. Grigg, as much as $3,000, as witness is perfectly cognizant, was used by her to pay debts of her husband, incurred in 1859 and 1860; only $400 or $500 thereof were taken by her to pay her expenses, and the expenses of plaintiffs, in traveling to Virginia.

No inventory or appraisement of the first community estate was ever filed.

After H. C. Grigg went to the army, and at the time of his death, his estate was going rapidly to waste. His family lived at a place on White Oak as their home. The stock, carried there from the old place, consisting of cattle, hogs, &c., soon died, and became lost. The crops were wholly used to maintain the place, except 30 bales of cotton, which witness took possession of, at the close of the war, to save it from destruction. Said cotton was applied, in part, to the payment of just debts of said H. C. Grigg. It brought 17 cents per pound, and did not pay the entire indebtedness of the estate, which is still in debt. There are no assets of the estate, except the place on White Oak, the second homestead, which is subject to overflow, and not worth paying taxes on.

Cross-examined: Witness stated there were three negroes on hand at H. C. Grigg's death, his separate property; seven or eight received by his first wife, and five or six by his second wife. Five were men, one a common plantation blacksmith. The average value of the men was $1,000 each; the average of the rest, $200 each. Witness could not estimate the amount of debts owed by Grigg at his death. Witness paid debts to Darley, to Hays, and to others; could not tell how much. The horses and mules on hand were worth $60 or $70 each, and cattle $5 per head.

Administration was opened on the estate in 1868. Oath and bond were filed by W. P. McLean, as administrator. An account for $200 was probated, which is still unpaid.

Plaintiffs closed.

David Yancy, one of the defendants, testified that he came to Texas, in January, 1862, in search of a home. Was a stranger in the country. H. C. Grigg, learning his business, offered to sell him the land in controversy. He examined the premises. Was at Grigg's house; saw his wife and children there. Agreed to buy at $4,750. Grigg and wife executed the deed to witness for the land (the same read in evidence by the plaintiffs).

Witness believed he was getting a good title, and did not know at the time of his purchase that Grigg had ever had any other wife than the one he then had, and never heard of it until some time afterwards. Witness entered upon the land in controversy at the time of purchase, and made his first crop that year. The purchase was made in good faith. The witness testified as to the improvements made by him and by the other defendants, who held by purchase under him, and as to the value of said improvements, &c.

Witness paid $4,000 of the purchase-money in the spring of 1862, and the remainder ($750) in the summer following. The land without improvement was worth from one to two dollars per acre.

David Yancy, Jr., testified in substance as did the former witness.

The defendants read in evidence an extract from plaintiffs' petition, as follows: “The said H. C. Grigg died in the year 1863, leaving his said children in charge of their said mother-in-law, who, having no children by said H. C. Grigg, abandoned the State of Texas, and now resides in the State of Virginia. Petitioners further show, that at the time of the death of the said H. C. Grigg, as above described, he had several slaves, and horses, mules, teams, wagons, cattle, hogs, provisions, corn, and some fifty or sixty bales of cotton, and many other articles of personal property, all of which were left in this State.”

W. P. McLean testified that he had done nothing as administrator of H. C. Grigg but to qualify and give bond. He filed no inventory, collected nothing, nor did he attempt to do so. He paid no debts. A claim of one or two hundred dollars had been probated,...