Adelicia Acklin (Cheatham) et al. v. F. L. Paschal et al., 48 Tex. 147

Gould, Associate Justice. The history of this case, up to that stage of its progress, is to be found in the twenty-seventh volume of Texas Reports. 'After the case was remanded to the District Court, it was, without objection, consolidated with another action of trespass to try title for the same property, brought December 17, 1859, in the name of the Franklin Institute, by its trustees, Albert C. Franklin et al., against F. L. Paschal and others.

On February 9, 1871, these trustees, having made known to the court that the Franklin Institute, a body corporate of the State of Tennessee, had been dissolved, and they, as trustees, discharged, but that the corporation was indebted to them in various sums, W. B. Leigh was appointed “ receiver ad litem” to prosecute said suits for the benefit of said creditors.

There was.an amended petition, claiming that the property in controversy, and the entire estate of Isaac Franklin, was subject to the payment of a legacy of $100,000, left by the will of said Isaac to his widow, the plaintiff, Adelicia, now Adelicia Cheatham, alleging that the entire estate was inadequate to such payment; that a sale of the property in controversy, to pay said legacy, would involve useless expense and loss; and claiming that therefore “ said Adelicia is the sole and lawful owner of said property, and that the same should be set aside for and decreed to her.” The amended petition further alleges, that the Franklin Institute had ceased to exist, by the judgment of the courts of Tennessee; attaching, as an exhibit, a copy of a judgment and decree of the Supreme Court for the middle division of said State, in the case of William Franklin (trustee) and others v.

John Armfield and others, made in 1867, and winding up as follows: “And it appearing to the court that the Isaac Franklin Institute fails for want of funds, all the property and effects devised having been lost by the emancipation of slaves, the casualties of war, and the necessary expenses and the charges fixed thereon by the will of the testator, it is therefore further ordered, adjudged, and decreed, that the complainants, as trustees, be released from all further responsibility as such.” On exception of defendants, that part of the amended petition setting up the legacy was stricken out.

The pleadings of the defendants need not be stated, further than that the defense of limitations was fully set up; also the claim of improvements in good faith. The plaintiffs, on the trial, claimed that the surviving children of Isaac Franklin, under whom they claimed, inherited the premises as forced heirs of said Isaac, notwithstanding his Will. They further claimed, that if the will was valid to vest said premises in the Franklin Institute, that said incorporated body had been dissolved, and that thereupon the premises reverted to them, as the heirs of the donor.

The title of Isaac Franklin was under a deed from P. B. Cocke, of date in 1837, conveying the undivided half of the premises in controversy; which deed was recorded in Bexar county in 1844. On March 22, 1839, P. B. Cocke conveyed to R. R. Barrow one-fourth part of the same premises, the deed reciting that the property conveyed is “ land in the town of Bexar, which he owns conjointly with Isaac Franklin,” and, after describing the premises, adds: “ One undivided half of said tract of land was sold to the above-named Isaac Franklin, by the present vendor, by

an act passed in this office the 5th of July, 1837. This fourth part of said tract of land is presently sold for the consideration of one hundred and twenty-five dollars, cash.” This conveyance was recorded in Bexar ^county, on February 7, 1843. In 1851, (the deed is blank as,to the month in which it was executed, but it was acknowledged May 6, and recorded in Bexar county June 7, 1851,) B. B. Barrow executed a deed to the defendant F. L.

Paschal, the material parts of which, after acknowledging the receipt of $600 as the consideration, are as follows: “Have this day granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, unto him, the said Franklin L.

Paschal, his heirs and assigns, all my right, title, and interest in and to a certain lot, [describing the premises,] said right, title, and interest having been heretofore acquired by me, of Pleasant Cocke, by deed of mortgage and by deed of conveyance.” (It is to be remarked, that the conveyance by Cocke to Barrow contains a recital that it was doubtful whether Barrow could legally hold the land, not being a citizen of the Republic, and, to provide against that difficulty, contains additional covenants to secure the purchase-money paid by Barrow.) “ To have and to hold all my said right, title, and interest, whether the same be legal or equitable, unto him, the said Franklin L.

Paschal, his heirs and assigns*, to their own proper use, benefit, and behoof, forever. And I do further stipulate and covenant' to and with the said Franklin L.

Paschal, that I have done nothing, and that I will hereafter do nothing, to affect any interest winch I have heretofore had in and to said land; .butT do not warrant beyond this; and the said Paschal declares himself well satisfied with this limited warranty.” The other defendants claim portions of the premises under recorded conveyances from Paschal, made at different periods in 1852, ‘ There was much evidence on the subject of improvements, showing that the premises have been so improved as to be now of great value.

There was also evidence on the subject of the possession of the different defendants, and the payment of taxes. A printed book of over 900 pages, giving a history of some of the litigation over the will of Isaac Franklin, the proceedings had to carry out that will, including the act of the Legislature of Tennessee incorporating the Franklin Institute, and many other matters pertaining to said estate, is treated as in the evidence.

The court instructed the jury on the question of forced heirship, and that if the Franklin Institute had '.been incorporated, and had a legal.existence, and, under the will, took title to the premises, that notwithstanding said incorporation were subsequently dissolved, and the title reverted to the heirs of Isaac Franklin, the defendants were entitled to the benefit of any defense, under the statute of limitations, which they had against the Franklin Institute at the time the suit in its name was commenced.

The charge instructed .the jury appropriately as to what was necessary to constitute adverse possession as between joint owners, and as to the general subject of limitation; but, under the five years’ limitation, did not attempt to define or describe what would be a “ deed or deeds duly registered,” within the meaning of the statute. The court also submitted some thirty special issues to the jury.

They returned a general verdict, as follows: “ We, the jury, find, from the evidence, that the property in controversy did ".not exceed one-fourth part of the estate of Isaac Franklin, and that the Franklin Institute is debarred by the statute of limitations, and, therefore, find for the defendants.” The special, issues and the answers thereto .were as follows: 1. Was Isaac Franklin the owner of one-half of the property described in the plaintiffs’ petition? Answer. He was. 2. Did Isaac Franklin execute the instrument marked -“A” as his last will and testament ? A. He did. 3. When did he die ? A.

Aptil 27, 1846. 4. What was the value of his estate at the time of his death, as shown by the inventory ? A. Property in Louisiana, $513,294.63; property in Tennessee, $104,063.28; property in Mississippi, .$58,400; property in Texas, $25,000;—total, $700,757.91. 5. Was Emma Franklin, at the time of her death, the sole surviving child of Isaac Franklin ? A. She was. 6. When did she die? A. November 1,1855. 7. Was she at the time of her death a minor? A. She was. 8. What was the relationship of the intervenors, Joseph H. and William H. Acklin, to the deceased, Emma Franklin ? A.

They were her half-brothers, having the same mother. 9. Were said intervenors minors at the date of Emma’s death ? A. They were. 10. Were said intervenors minors on the 15th day of March, 1858, the date of their intervention in this suit? A. They were. 11. What was the relationship of Mrs. Adelicia Cheatham to Emma Franklin, deceased ? A. She was her mother. 12. Was Mrs. Cheatham a married woman at the date of F. L. Paschal’s purchase from R. R. Barrow ? A. She was then the wife of Joseph A. H. Acklin. 13.

Do the deeds from Cooke to Barrow, and from Barrow to Paschal, show that Isaac Franklin was a part owner of the land in controversy ? A. The deed from Cocke to Barrow does show that Franklin was half owner, but that from Barrow to Paschal does not. 14. Does the deed to Barrow limit the amount of said lot conveyed to him by Cocke ? A. It does, to one-fourth. 15. Did Barrow convey to Paschal the same quantity of land sold to him by Cocke ? A. He did. 16.

Was the portion sold to Paschal set apart and designated by metes and bounds, or was it an undivided portion of the same tract originally owned and sold by Casiano ? A. It was originally a portion of the tract of land owned and sold by Casiano. 17. Did Paschal take possession of the whole tract, or» of a part of the same ? If only a portion, then state which portion. A. He took possession of the whole tract. 18.

Did Paschal take possession of the land in such manner and under such circumstances as to show that he openly and explicitly disavowed the title of Isaac Franklin, or those claiming under him, and was such disavowal brought home to those having a common interest with him ? A. He did take possession in such manner as to disavow the title of Isaac Franklin, or those claiming under him, and gave notice by having it surveyed and disposing of it under deeds recorded. 19. "When did Paschal take possession of said land? A. In November, 1851. 20.

What was the value of said undivided half of said land when Isaac Franklin died ? A.' Seven hundred dollars. 21. Was its worth or value less than one-fourth of the entire estate of said Franklin, as evidenced by the inventory of his estate ? A. It was. 22. Was the Franklin Institute incorporated by the Legislature of the State of Tennessee ? A. It was. 23. When was it incorporated ? A. December 1, 1847. 24. Was the Franklin Institute organized, and when? A. It was organized March 15, 1850. 25. When was the Franklin Institute dissolved, and ,by what authority ? A.

By a decree of the Supreme Court of 'Tennessee, on the 28th day of March, A.D. 1867. 26. Was the suit Ho. 2777, now consolidated with this suit, commenced subsequent to the date of the organization of the Franklin Institute ? A. It was. . • 27. .Was said suit filed prior to the date of the dissolution of said institute ? A. It was. 28. Was the land now in suit, and claimed by said institute, devised by the will of the said Isaac Franklin, deceased, to said Franklin Institute, in trust for charitable uses ? A. It was. 29. Did any of those who purchased lots of said land from Paschal buy the same in good faith ?

Name them. A. They did not. 80. Did any of - them purchase of Paschal in bad faith ? Name them. A. They did. Thereupon judgment was rendered in favor of defendants, quieting them in their possession and title; and that judgment has been' brought to this court by writ of error for revision. 1. Did the court err in sustaining the exceptions to that part of the petition setting up the legacy ? ' It will he observed, that the unpaid legacy was alleged as a reason why the property sued for should be adjudged to the legatee, Mrs.

Cheatham, and that there was nothing in the amended petition indicating that it was alleged with a view of having the property subjected to its payment. The action was trespass to try title; and the only prayer, besides a prayer for general relief, was that which is appropriate to that action. Certainly, if Mrs. Cheatham was entitled to an unpaid moneyed legacy out of the estate, that did not give her a title to the lands of the estate, nor a right to their possession.

And even if she had sought the sale of the property for the payment of her legacy, it was not claimed that it constituted a charge on the lots in controversy, more than on any other property of the estate. Her remedy was not by claiming a lien on each distinct tract of land or piece of property belonging to the estate, but by seeking to enforce payment out of the entire estate. But how could she have the amount due her on her legacy adjudicated, or enforce its payment, in a suit against defendants who had no interest whatever in the estate ?

Certainly, to maintain a suit for that purpose, it .would devolve on her to bring before the court all parties interested in the •estate. Without inquiring as to whether she had any rights as legatee which could be asserted at the time this amendment was filed, we are very clear, that the court did not err in sustaining the exceptions to that part of the petition which was stricken out. 2.

When this case was formerly before this court, it was held, that under the admissions of the parties the will was before the court as if properly probated, (and we understand this to mean probated in this State,) and the opinion was expressed, that to question its validity in this suit would be to attack the will in a collateral proceeding. We are satisfied with these conclusions; and they render it unnecessary for us to scrutinize the charge of the court on the subject of forced heirs. (Anderson v. Stewart, 15 Tex., 289; Box v.

Lawrence, 14 Tex., 545.) If the plaintiffs had any rights, on account of the forced heirship of the children of Isaac Franklin, under the statute on that subject then in force, those rights could only be asserted in some proceeding having for its object the . setting aside of the will. It is said that the will was renounced by the last surviving child of Isaac Franklin; that the renunciation was approved by the courts of Louisiana; and, further, that by the judgment of the courts of that State, the legacy to the Franklin Institute was annulled.

The action of the courts of another State in setting aside the will as to real estate and slaves in that State, because in violation of their statutes, was not designed to affect, and certainly could not affect, the validity of the will as to real estate in Texas, the will standing as having been probated here. (Acklin v. Franklin, 7 La. Ann., 895.) 3. It is claimed, that by the terms of the will the property did not vest in the.Franklin Institute or its trustees.

In the former consideration of the Will, in this court, it was treated as a bequest to the two brothers of the testator, in trust for the charitable uses expressed. Indeed, such is the plain language and meaning of the instrument. Very plainly, by the terms of the will, the. entire estate in .Texas was conveyed and vested in these trustees; and there can be no pretense that it was the-intention of the testator to leave the legal title in his heirs or widow.

The latter, indeed, conveyed to said trustees “ all her rights of dower and community and other rights in the property devised by her husband, Isaac Franklin, for the purpose of establishing an academy,” &c. Whether, after the incorporation of those trustees, or, rather, of the only one who acted, as the Franklin Institute, the legal title is to be regarded as in the trustees or in the body corporate, does not seem to be material. The beneficial ownership was in the incorporation, whether the legal title was or was not. 4.

We think that the record must be regarded as showing that the Franklin Institute had ceased to exist as a body corporate. The trustees come into court and state the fact, and it is acted on by the court below. The courts of Tennessee adjudicated that the Franklin Institute has failed, for want of funds, and discharged the trustees from further responsibility. Under these circumstances, the courts of this State might well assume that the incorporation was dissolved.

If so, it would seem to be the settled rule, that “ its real estate reverts back to the original grantor and his heirs.” (2 Kent’s Comm., 307; Mayor and Commonalty of Colchester v. Seaber, 3 Burr., 1866; White v. Campbell, 3 Humph., 38.) The plaintiff and her sons, the intervenors, being the heirs of the surviving children, and heirs at law of Isaac Franklin, were thus entitled to recover the interest of the estate in the premises sued for, unless prevented by the claims of the creditors of the Franklin Institute, represented by the receiver, or by some ground of defense established by the parties defendant.

As to the rights of those creditors, it is enough to say, that no evidence was adduced as to any indebtedness of the institute, and no issue on that subject was submitted to the jury: 5. But the jury found for the defendants, on the ground of limitations. Was that defense made out? . There can be no pretense that ten years’ adverse possession was established.

Indeed, the special verdict of the jury, fixing-the commencement of Paschal’s possession in November, 1851, shows that they could only have found on the ground that five years’ adverse possession had been shown under a deed or deeds duly registered, and attended with the payment of taxes, use, &c., as prescribed by the statute. We are clearly of the opinion, that the deed from Barrow to Paschal was not such a deed as the statute contemplates. It is not a deed to the land, but only to such right, title, and interest as Barrow had before acquired from Cocke.

That interest, we have seen; and the deed showing the fact was of record in Bexar county, was only one-fourth. Barrow’s deed, then, does not purport to convey the land, but only an' interest in it; and that interest, it appears from the conveyance referred to in the deed, was only one-fourth. It has been said, that “the object of the statute"in prescribing registry of the deed as necessary to enable the possessor to avail himself of the five years’ limitation, is to give notice to the owners that the. defendant in possession is claiming [the land] under the deed.” (Kilpatrick v.

Sisneros, 23 Tex., 136.) Evidently, a deed to an undivided interest will not, under the statute, protect the grantee beyond the interest it on its face purports to convey. Such a deed gives notice that the party in possession claims the undivided interest therein which the deed conveys, but is not notice that he claims the whole; yet such, in effect, is the deed under which Paschal claims. ' In Mitchell v.

Burdett, speaking of this statute, it was said : “ It rests on the idea, that he who can show that he has thus notoriously claimed and used and borne the burden of property as his own, is most likely to be its true owner, although he may not be able to exhibit a regular chain of title from and under the government, and shall be taken to be the true owner.

This was giving very great force to the presumptions arising from the usual incidents of ownership, and can only be accounted for, reasonably, on the ground that great importance and weight were attached to the concurrence of so many of the incidents of ownership as are specified in this section, to wit: a deed, registration of deed, possession of land, cultivation, use or enjoyment, payment of taxes; and these all continued in connection during the full period of five years.

Each one of these incidents, then, becomes very important, in order to support the conclusive force of the whole.” (22 Tex., 634.) In pursuance of the idea of giving notice, it-has been held that a deed so uncertain or contradictory that it describes no land, is not the deed contemplated in the statute.

The statute is one of great importance to the quieting of litigation; but, in our opinion, it would he to violate its object and meaning, to hold that the deed from Barrow to Paschal was such as in any wise conveyed notice that Paschal claimed the whole land, or was such a deed to the lots in controversy as would protect a party in possession under the limitation of five years. As to the defendant Paschal, the defense of limitation was not made out. So as to defendant Fries: the evidence was insufficient as to that part of lots 2 and 3 which was conveyed to him by Kampmann in April, 1855.

The evidence is, that Paschal conveyed lots 2 and 3 to Kampmann and Fries in May, 1852, and that in August, 1853, they, by deed of partition, divided the two lots between them, Fries taking the improved lot. During the time that the other, or unimproved lot, was owned by Kampmann, there is no evidence that there was any actual possession of that lot. It is only from the time that it was conveyed by him to Fries that the evidence shows such possession. Certainly, after the partition, Fries’ possession was limited to the lot retained, and did not extend to that which he had parted with. (Cunningham v.

Frandtzen, 26 Tex., 34.) The time after the conveyance to Fries, in April, 1855, up to the commencement of suit in the name of the Franklin Institute, was less than five years. Again, as to some of the defendants, the evidence as to-the payment of taxes was quite defective. The defendant Williams, as his evidence of payment of taxes, introduced a certificate which, as explained by the officer who gave it, was-wholly insufficient to show that the taxes for five years had been paid.

As to some of the defendants, the evidence may have been-sufficient to support the verdict; but as to the defendants Paschal and Williams, and in part as to defendant Fries, it was not sufficient. We have not deemed it necessary to pass-upon the question of its sufficiency as to each of the defendants separately. The defendants did not sever in their pleadings, nor on the trial. ' They went to trial together. The verdict was in favor of them all jointly, and the judgment followed the verdict.

That judgment is an entirety, and if erroneous and reversed as to some of the defendants, it must follow that it be reversed as to all. The judgment is therefore reversed and the cause remanded. Reversed and remanded.