Young v. Russell

• Decision Date: 28 January 1884
• Docket Number: Case No. 4426.
• Parties: ALICE YOUNG v. D. L. RUSSELL.
• Court: Texas Supreme Court

60 Tex. 684

ALICE YOUNG

v.D. L. RUSSELL.

Case No. 4426.

Supreme Court of Texas.

Jan. 28, 1884.

APPEAL from Bell. Tried below before the Hon. L. C. Alexander.

Suit by Elizabeth Williams, Lillie Williams, Sallie Williams and Dollie Williams, infants under the age of twenty-one years; by L. C. Williams, their next friend, against W. P. Young and his wife, Alice Young, and against the appellee, D. L. Russell, to recover their interest in certain tracts of land, and to cancel certain deeds to some of the tracts of land which had been conveyed by W. P. Young to D. L. Russell.

The plaintiffs claimed their interests as heirs to the community one-half of the property owned by their deceased father, Eli Williams. They alleged that their mother afterwards married said W. P. Young; that their father left as part of his estate a large stock of cattle, some being community property, of the value of $10,000.

The plaintiffs alleged that after the marriage of W. P. and Alice Young, W. P. Young, with the acquiescence of his said wife, converted by sale plaintiffs' interest in the stock of cattle, of the value of $5,000, and with the proceeds purchased and acquired in his own name several tracts of land which were described.

Plaintiffs alleged that on the 10th of September, 1877, said W. P. Young, without any lawful authority, executed deeds to the first, second and fourth tracts of land described to D. L. Russell; that Russell received the deeds with full knowledge of plaintiffs' interest in the lands; that the same were the proceeds of their property and without adequate consideration; that he caused the deeds to him to be duly recorded, with intent to defraud plaintiffs, and that said records constitute a cloud upon their title. Prayer for judgment against W. P. and Alice Young for all the tracts of land except the third designated tract, and that they be substituted in respect to that to the rights and equities claimed by said W. P. and Alice Young, and for decree of cancellation of the deeds made to Russell.

Alice Young filed a special answer, which, in effect, admitted all the main and essential facts alleged by plaintiffs, and joined the plaintiffs in their prayer that the deeds of conveyance to Russell be canceled. The answer admitted that plaintiffs were entitled to one-half the property sued for. It appeared in the judgment, and also from the charge of the court, that, at the trial, the defendant Alice Young failed to appear and that her answer was not presented.

The defendant Russell answered by a general denial and special answer, alleging that he purchased the tracts conveyed to him from W. P. Young for a valuable consideration and without notice of plaintiffs' claim to it, and prayed that title to the same be decreed to him, that he be quieted in his possession thereof, and for writs of possession.

The verdict of the jury found for the plaintiffs twelve and thirty-five fiftieths acres in a one hundred acre tract, and one-half of a twenty and one-third acre tract, and one-half of a two hundred acre tract, and the remainder of the tracts were found for defendant Russell; the judgment and decree of the court was rendered in accordance with the verdict, with writs of possession to the plaintiffs and to defendant Russell, respectively, for the three tracts of land, and adjudging one-third of the costs of suit against defendant Russell and two-thirds of the costs against the defendant W. P. Young, and, in case the same cannot be collected from said Young, that the same should be paid by the plaintiffs, in the due course of administration of their estates.

The defendant Alice Young filed her motion for a new trial, which was overruled. Her appeal bond was made payable to D. R. Russell, her co-defendant; the plaintiffs were not noticed as obligees of the bond in any manner.

Dupree & Saunders, for appellant.

Boyd & Holman, for appellee.

WALKER, P. J. COM. APP.

The appeal in this case does not bring the plaintiffs before this court because the appeal bond does not conform to the conditions of the law which are required to confer jurisdiction over them for the revision of the judgment rendered in their favor against the appellant. The plaintiffs recovered by the judgment appealed from one-half of two of the tracts of land sued for and a portion of another of the lands involved in this suit, and the defendant recovered the remainder, and if the judgment thus rendered be reversed on this appeal, the interest of the plaintiffs must be affected to the extent of setting aside wholly the judgment as an entirety, thereby requiring the plaintiffs again to prosecute their suit in the court below. The plaintiffs were otherwise interested in the matter of costs, which had been so adjudged...