A. W. Desmuke et al. v. Sam Houston et al., 89 Tex. 10

BROWN, Associate Justice. On September 19, 1881, Sam Houston and others, the children of General Sam Houston, instituted a suit against A. W. Desmuke, Wharton Branch and James Davis to recover four leagues of land situated in Liberty County, granted by the government of Mexico to Manuel de los Santos Coy. A. W. Desmukes and James Davis died pending the suit and their representatives were made parties. Daniel C. Robbins and John C. McKesson, composing the firm of McKesson & Robbins, John Vanier, W. F. Hardin and W. J. Montgomery were subsequently brought in as defendants. On April 13, 1883, Albert G.

Dunn and others, the heirs of John R. Dunn, deceased, intervened and claimed against all the parties one-third of the land. Sam R. Perryman intervened August 25, 1893, and claimed one-fourth of the land, by a conveyance from the heirs of Houston, except Temple Houston. The grant under which plaintiffs claimed was the oldest of three grants, which were in conflict with each other. The league grant in the name of B. M. Greene, and also a league grant in the name of one Martinez, were in conflict with the Santos Coy grant, and also in conflict with each other.

The Martinez grant was in conflict with the Greene league to the extent of about 804 acres. James Davis, who claimed the Martinez grant, was in the actual possession of that portion in conflict with the Greene survey, and had a portion of it in cultivation. A. W. Desmuke claimed the Greene league. Desmuke and Davis made a compromise, by which Desmuke conveyed to Davis all of that portion of the Greene league which was in conflict with the Martinez survey.

Davis had in actual possession, by a fence extending over onto the Greene league, not in conflict with the Martinez survey, about thirty or forty acres, and he and Desmuke entered into a written agreement with reference to the possession of the same, which will be hereafter referred to. Davis continued in possession until 1860, the agreement between him and Desmuke having been made in the year 1848. McKesson and Robbins claimed one-half of the Greene league by conveyance from Desmuke, dated January 30, 1860, and duly recorded.

Wharton Branch claimed a one-third interest in the undivided half in the Green league by conveyance from A. W. Desmuke in his life time. Vanier claimed 160 acres by limitation of ten years.- ' McKesson & Robbins and Wharton Branch claimed limitation of ten years by reason of the possession of General Davis. Under a judgment and execution thereon, dated February 15, 1875, in favor of A. Cunningham, the interest of Nettie Bringhurst to the four leagues was sold on September 22, 1875, by the sheriff of Liberty County to W. J.

Montgomery, by deed recorded September 27, 1875, which interest Montgomery conveyed to George W. Davis. Under a judgment rendered July 11, 1874, and execution issued thereon and levied August 27, 1874, the interest of Sam Houston, Jr., in the four leagues was sold and conveyed to W. F. Hardin. On March 19, 1888, William R.. Houston, one of the heirs of General Sam Houston, conveyed all of his interest in the four leagues to George W. Davis. January 26, 1891, Davis conveyed all of his interest to W. F. Hardin. On the 7th of August, 1883, Nettie Bringhurst, Temple Houston, W. R. Houston, A. J.

Houston, Sam Houston and M. W. Morrow, all children of General Sam Houston and plaintiffs in the original suit, conveyed to Wharton Branch all their interest in the four-league survej1, which was recorded August 18, 1885, and recited that the consideration of two thousand dollars'was paid. W. R. Houston was to receive for his interest $250, but no lien was reserved in the deed, and he consented to its delivery to Wharton Branch, who did not pay the money therefor.

The case was tried before the district judge without a jury, who entered judgment for the several parties, the particulars of which are not necessary to be stated here, except so far as they affect the questions presented by the application for writ of error in this case. Judgment was given in favor of S. R. Perryman, intervenor, for five forty-eighths of the land, and in favor of Wharton Branch for the interest of W. R. Houston and the others of the heirs who had conveyed to him, but the court at the same time entered judgment against Wharton Branch in favor of W. F.

Hardin for $250 and interest from the date of the deed made by the Houston heirs to Branch, conditioned that if the money was not paid by Branch to Hardin within twenty days from the date of the judgment, then the interest to which W. R. Houston would have been entitled as an heir should be deducted from the portion allowed to Wharton Branch and added to that which was allowed to W. F. Hardin. The judgment of the District Court was affirmed by the Court of Civil Appeals. W. F.

Hardin filed a cross assignment of error in the Court of Civil Appeals upon the judgment rendered in favor of Branch for the interest of W. R. Houston in the land, but he made no motion for a rehearing in the Court of Civil Appeals, and his cross assignment cannot be considered in this court. The application for writ of error in this ease is made by Wharton Branch and a number of persons, the heirs of A. W. Desmuke, and John McKesson and D. C. Robbins. The grounds of error assigned in the application are as follows, in substance: 1.

That the Court of Civil Appeals erred in its construction of the agreement between A. W. Desmuke and General James Davis with regard to the possession of that portion of the Green survey which Davis had enclosed at the time the agreement was made. 2. In holding that Perryman, under his contract with the heirs of General Sam Houston, except Temple Houston, was entitled to five forty-eighths of the four-league grant, less 964 acres, which was adjudged to John Vanier and the heirs of James Davis. 3. In adjudging a forfeiture to W. F.

Hardin of three forty-eighths of the thirteen forty-eighths of the land adjudged in the decree of the lower court to Wharton Branch, unless the said Branch should pay the money adjudged against him within twenty days after the adjournment of the term of the District Court. 4.

In holding that the land embraced within the field notes set out in the pleadings of the plaintiffs and of the interveners, Perryman and the heirs of Dunn, and the land embraced in the field notes set out in the county surveyor’s report, made and filed in the cause in obedience to an order of the trial court, are one and the same body of land. The third and fourth grounds assigned as error were not presented by assignments of error in the briefs of the parties to the Court of Civil Appeals, and we cannot, therefore, consider them here.

The thirteenth assignment of error of the appellants, the heirs of Desmuke, and Wharton Branch, as presented in their brief to the Court of Civil Appeals, is in this language: “The court erred in rendering judgment against the defendant, Wharton Branch, for the sum of $250, besides the interest, in favor of William F. Hardin,” etc.

This assignment does not present the ground of objection urged in the application for writ of error; it did not call to the attention of the Court of Civil Appeals the fact that the judgment below provided for a forfeiture of a portion of the land adjudged to Wharton Branch upon his failure to pay the money within the time specified, and the Court of Civil Appeals did not so- understand the assignment, but treated it as an assignment raising alone the question of the correctness of the judgment in favor of W. F. Hardin for the money which should have been paid by Branch to W. B. Houston.

We, therefore, cannot consider the error of the trial court in putting that condition of forfeiture in the judgment, for the reason, as before stated, that the question was not presented to- the Court of Civil Appeals. The application for the writ of error was granted upon this assignment of error, but we did not notice at the time that it had not been properly presented to the Court of Civil Appeals.

There is no assignment of error contained in-the briefs of either of the plaintiffs in error which raises the question of the identity of the land described in the petition with that described in the judgment; therefore, that error, if any, cannot be considered. This brings us to the consideration of the first and second grounds of error in the application in this case. The written agreement entered into between A. W.

Desmuke and General James Davis was destroyed by fire, and its contents proved by the testimony of Wharton Branch, whose testimony is set out by the Court of Civil Appeals, as follows: “Among the papers of a suit which General Sam Houston had brought against General James Davis I found a deed and a contract between General James Davis and Andrew Desmuke. I left the papers there and did not take them out. On the 11th day of December, 1874, the court house of Liberty County and all of the records were destroyed by fire. The deed and the contract were both dated December 4, 1848.

The contract between said Davis and Desmuke provided that Davis was to convey to said Desmuke a land certificate equal in quantity to the amount of the conflict between Benjamin M. Greene and the J. D. Martinez surveys, when the same should be ascertained; and the said Davis’ possession of the balance of the Benjamin M. Greene league should be held for Desmuke, and he should act as his attorney. The suit in which the said contract was filed had been brought against Davis for the B. M.

Greene league, but had been dismissed.” The Court of Civil Appeals, upon this evidence, held that the possession contemplated by the agreement was that which Davis had before the agreement was made between him and Desmuke of that portion of the Greene survey which was not in conflict with the Martinez league, and did not extend to the entire league. In other words, that Davis held only to the limits of his enclosure upon the Greene league.

The meaning of this agreement is not entirely free from doubt, and the language used must be considered in connection with the facts and circumstances attending the making of it. This makes a question of fact for the decision of the District Court and the Court of Civil Appeals, in the construction of that agreement as proved, and the finding of those courts upon such questions is conclusive upon this court.

We cannot say as a matter of law from the language used in the agreement that it was the intention of Desmuke and Davis that the latter was to have possession and control of the entire Greene league as a tenant of Desmuke. The District Court found as a conclusion of fact that seven out of eight of the heirs of General Houston by deed conveyed one-fourth of their interest in the four-league grant to S. R. Perryman. Before the institution of the suit the interests of Sam Houston, Jr., and Mrs.

Bringhurst, two of the heirs who had contracted with Perryman, were sold under execution and became the property of the defendant Hardin, therefore no recovery could be had in their right in this suit, and Perry-man could receive nothing therefor. Temple Houston had conveyed his interest to Wharton Branch and had never signed the contract with Perryman, but was excepted therefrom, and Perryman could get nothing on account of the recovery in his right. Of the five remaining heirs, four conveyed their interests in the land, during the pendency of the suit and after the contract with Perryman, to Wharton Branch.

The recovery of the land was had in the name of one of the heirs, Mrs. Morrow, and in the right of the other four which was adjudged to Wharton Branch. It will be seen by this statement that Perryman recovered the interests of five heirs in the land, although the judgment for four interests was in favor of their vendee, Branch. It is contended that Penyman should have had only a one-fourth interest in what was recovered for Mrs.

Morrow, but this is not correct; Branch took the conveyance from the other four plaintiffs subject to the rights of Perryman, and taking the benefits of the recovery he must receive such benefits encumbered by the obligation resting upon his vendors. Perryman was entitled to his one-fourth part of all of the land recovered in the right of the heirs who contracted with him. We therefore find no error in the judgment of the court upon the questions presented for our consideration in this case, and the judgments of the District Court and Court of Civil Appeals are affirmed. Affirmed.

Motion for rehearing and argument were filed by Wharton Branch for himself. The motion was overruled.