A. K. Van Sickle et al. v. John E. Catlett et al., 75 Tex. 404

STAYTON, Chief Justice. Appellees brought this action to recover • 1207-2- acres of land, a part of the east half of a league of land granted to John Piburn, and deraign title thereto through inheritance from William G. Logan. The land was granted to Piburn on August 7,1835, and as evidence of the grant appellees offered a certified copy from the General Land Office of the original title, which was objected to on the ground that the testimonio was better evidence, and its non-production not accounted for. The objection was properly overruled. Sheppard v. Harrison, 54 Texas, 96; Nicholson v.

Horton, 23 Texas, 50; Rev. Stats., art. 2252. To show title in William G. Logan appellees offered in evidence a certified copy of

an act of sale, which was an archive in the office of county clerk for Nacogdoches County, the land being in that municipality when the act, which bore date September 5, 1835, was executed. That paper purported to convey the east half of the Piburn league to Wm. G. Logan and J. K. Allen, and was objected to because the copy of the original, usually given to vendees, was not produced or its execution proved. This objection was properly overruled. Andrews v. Marshall, 26 Texas, 216; Cowan v. Williams, 49 Texas, 395; Broxson v. McDougal, 63 Texas, 197; Rev. Stats., art. 2256.

No objection was made to the form or manner of execution of the instrument. Appellees offered in evidence what purports to be a decree of partition, by which the east half of the Piburn league was partitioned by the District Court for Nacogdoches County between the estate of Wm. G. Logan and one Cocke, in which the land in controversy was set apart to the former.

It is not made to appear whether Cocke had acquired the interest of Allen in the land, and the decree was objected to on that ground, and on the further grounds that it did appear that Logan acquired Allen's interest; and further, because the court had no jurisdiction to make partition, and because appellants were not made parties. The District Court must be presumed to have had jurisdiction to make the partition in the absence of some evidence showing to the contrary.

Appellants do not show that they had any interest in the land through Logan, Allen, or any other person, and were neither necessary nor proper parties. If Cocke had not acquired the interest of Allen, the partition would not affect the rights of such person as has. If the partition was utterly invalid, it would not affect the right of the parties to this action, for appellees, through inheritance from Wm. G.

Logan, have such interest in the entire half league, if that be true, as would enable them to maintain this action against appellants, who seem to be only trespassers; and if the partition be valid, then appellees hold the land in controversy under it.

Under the third and ninth assignments of error appellants make this statement: “ There was a decree in the District Court of Smith County, dated October 9, 1877, to which the appellees and many others were parties, but to which the appellants were not parties, the object of which was the partition of the land in this suit, but it totally failed to set apart the land mentioned in it to any one." If this be true, appellants suffered no injury by the introduction of the decree, for the interests of appellees in that case would be an interest in the half league, which would entitle them to maintain this action, which they could not do if the land in controversy had been set apart in valid partition to some other person, or if it had in several parcels been set apart to appellees.

There seems to have been an attempt to partition -the land in controversy between appellees through a decree of the District Court for Wood County, but the decree does not make a partition, and leaves the parties as they were before the suit was brought—tenants in common—and in no way affects their right to maintain this action. It is immaterial whether the court gave or refused to give charges as to the effect of the decrees or proceedings looking to the partition of the land, for none of them in any manner affected the right of appellees to maintain this action, or gave or took away any right appellants showed.

The court, in effect, instructed the jury that appellees had shown title which entitled them to recover, unless appellants or some of them were entitled to hold under the statutes of limitation. All the evidence showing their right was by written muniments of title except that which showed their relationship to Wm. G. Logan, and there was no conflict in the evidence as to that matter or suspicion thrown upon its truthfulness. In such case it was not error to give the charge complained of.

It seems that Van Sickle bought the land in 1868 from one who had no title, and that for the purpose of placing it beyond the reach of his creditors caused the deed to be made to B. F. Broyles, which was not recorded until July 29, 1880. Van Sickle claims to have had possession of the land while the title stood in the name of Broyles, who did not convey to him until March 4, 1881. The court instructed the jury, in effect, that limitation of five years would not run in favor of Van Sickle until the record of the deed to him from Broyles. There was no error in this instruction. Porter v.

Chronister, 58 Texas, 56; Medlin v. Wilkins, 60 Texas, 418. The Piburn grant was in

part covered by a junior grant known as the Berryhill tract; of this

part in conflict appellants, or some of them through whom they claim, had been in possession for many years, and this they held under the statutes of limitation of ten years; but whether any of them had been in possession of the part of the Piburn grant not covered by the Berryhill was a matter as to which there was a conflict of evidence. The jury, upon this question, must have found that no such possession was held for five years after Van Sickle’s deed was recorded. Wm. Gr.

Logan married in 1830 and died in 1835, his widow surviving, and it was not shown on the trial whether she was living or dead; and it is contended that the property was community property which descended to her on the death of her husband. If this were true, appellees could not recover without showing that they had in some way acquired title from Mrs. Logan. At the time Wm. G. Logan died his wife did not inherit his estate. Babb v. Carroll, 21 Texas, 765.

The presumption, however, from the facts proved is that the interest acquired in the land was community property, one-half of which belonged to the wife and the other, under the laws in force at the time of his death, passed to his heirs. Thompson v. Cragg, 24 Texas, 582; Veramendi v. Hutchins, 48 Texas, 550. This, however, would not defeat the right of appellees to maintain this action. There is no error in the judgment and it will be affirmed. Affirmed. Delivered December 13, 1889.