W. J. Becton and others v. C. B. Alexander and others, 27 Tex. 659

Moore, J. The court did not err in overruling the exceptions to the plaintiffs’ petition. The allegations of the plaintiffs unquestionably present a case in which they are not only entitled to invoke the jurisdiction of the District Court, but as to which the County Court was powerless to grant them full and adequate relief.

Although their original petition does not, in express terms, charge a collusion and combination between the executors and the other defendants, who are charged to have taken into then’ possession, under the assertion of a claim of title, some of the negroes belonging to the estate of their ancestor, Frederick E. Becton, deceased ; yet, from the facts disclosed, it is plainly inferable that the executors were cognizant of and acquiescing in the alleged title set up to these negroes by their co-defendants. Indeed, Carnes B.

Alexander, one of the executors, and his wife are alleged in the original petition to claim and hold adversely to the estate two of the negroes claimed by the plaintiffs as belonging to it. But if there were any doubts as to the sufficiency of the original petition, it is, unquestionably, removed by the amendments which bring the case clearly and fully within the rule laid down in former decisions of this court. (Crain v. Crain, 11 Tex., 80 ; Purvis v. Sherrod, 12 Tex., 140 ; Smith v. Smith, 11 Tex., 102; Newson v. Chrisman, 9 Tex., 113; Francis v. Northcote, 6 Tex., 185 ; Dolin v. Bryan, 5 Tex., 276 ; Long v.

Wortham, 4 Tex., 381; Thomas v. Hill, 3 Tex., 270, Chevalier v. Wilson, 1 Tex., 161.) The testimony undeniably tends to prove that the executors must have been fully informed of, and were willing to recognize and sanction the adverse claim to the property by their co-defendants.

It is ingeniously, but we think incorrectly, insisted by the defendants’ counsel that the proper averments were not made until the filing of their amended petition in 1858, to authorize the plaintiffs to maintain a suit directly in their own name in the District Court, and therefore, it should be treated as a new suit brought at that time.

But the amended petition does not set up a different cause of action from that relied upon in the original petition; it only cures and supplies insufficient and defective averments setting forth their cause of action; more fully enlarging and presenting the facts and circumstances connected with it, for the more definite perception and determination of the issues involved in it. The ground of action upon which, the plaintiffs base their suit, is the superior title of the heirs of Frederick E.

Becton, deceased, to the negroes in dispute, and the adverse claim and possession of them by the defendants. (We say nothing about that branch of the case growing directly out of the will, as there seems to be no controversy here about it.) The mere evidence, or claim of right upon which the defendants relied to maintain their title, may have been unknown to the plaintiffs when bringing their suit, or, if known, need not have been stated; and when presented as a ground of defence, allegations of its invalidity, with an appropriate prayer for judgment upon this hypothesis, cannot be -regarded either as a departure from the original cause of action, or the presentation of a new one.

It cannot be disputed that the instruments upon which the defendants rely to establish their title, were made and intended as mere shifts and contrivances in fraud of the law, to deprive the plaintiffs of the rights secured to them by the statute of wills, and that effect can be given to them only to the extent of the disposable interest of the pretended grantor in his estate. (Crain v. Crain, 17 Tex., 80 ; S.

C., 21 Tex., 790.) And if the judgment was otherwise unobjectionable, there would, perhaps, be no cause of complaint with the decree of the court below directing their probate as a part of the will of said Frederick E.

Becton, deceased, and the distribution of his estate on the basis of a proportional deduction from the bequests to each of the different legatees. (Though, if the question were an open one, I confess that, in my opinion, having been made for the fraudulent purpose of evading the law, the sounder principle would be to hold them entirely void.) But the judgment must be reversed for the ruling of the court against some of the defendants, who made out their title under the statute of limitations by an adverse possession of two years before the commencement of the suit.

The admissions of the plaintiffs clearly show that some of them had been holding the negroes, for which they are sued, for more than that time, under an absolute claim of ownership adversely to the heirs and legal representatives of Frederick E. Becton, deceased. It cannot properly he said against them, that the instruments by which they claim are testamentary in their character, and their title was, therefore, in recognition of and subordination to the superior right of the personal representatives of the estate of said Frederick E. Becton, deceased, for the purposes of its due administration.

This was not the nature or character of the title by which they assumed and claimed to hold. It purported and was maintained by them to be adverse to, and independent of the representatives and heirs of said estate. That some of the plaintiffs were femes covert and infants at the commencement of their suit, does not deprive the defendants of the benefit of their limitation; to do so, their disability must have preceded the commencement of the running of the statute. This was neither alleged nor proved.

The court, however, seems to have regarded the statute of limitations as inapplicable to the case, and this may, probably, have misled the parties. .We think, therefore, although a jury was waived and the entire case, as well on the facts as law, was submitted to the court, that a final judgment should not be pronounced in it by this court. The judgment is reversed and the cause remanded. Reversed and remanded.