The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1874-11-18

aeus and Gds and a,Fed h wr''Iei
oWn0n
ANm patient ipWntiHNIDn judge
feua responded Inlhe lp'lpWins
LEGAL owNioNl
The facts submitted 10 nae pre ihtsHi
lifsl-Iphu 0rlgsly iWmlBlllrh lp|
Texas la 1874, nom lhe HlHlenl llllnulHl
will his wife and seven children bi
u previous marrlngn, town. llAWl plIh
Ruth Ann llllzahpllli james WI,
liam, John And liplrlL lig llli hall
wife h0 had two children in Tpgns, w
wit, l}miline born January Glh, lnlil
and Daniel IS, dorm February lalh
lhlD,l
Reeond-As the head Of q mmily he
obtained hiH headlight for a League ana
lah0E and also, by purchase q u W rerll,
llcpte. They were both located NJ aud
ncnr pnllNs, .,
Third lie, In hlsllftlmp, gave bond
Cor l0rnliyo Interest Oll nl lllr same 10
his son Crawford 7iii Aeres lonnnlher
and gul lnAnolhpr iu nll liWAi nprea-
leaving t0r partition H,ils5, Rll OF which
wac confirmed and perfected into lllleh
by the probate court
'Fouin After John G1gHhy'sdellh,
la March, lNll, hla widow mnulud l'l-
~ lldens March, lbl4l, ShcdltdJunt
l8lh, 1919, leaving surviving her by hpr
last murrlngo Marin le Elrns And ny
! her previous marriage WIN blibalFt
Emlllnc aud puulcl H. iflG.hN
finh-- Hala lgdpnH administered on
the estate Of john Gllgsby and hlsHnld
wife,
Sixth There waB u partition al Ia
due form uf the lands IN nalllH couuly
BELONGING ~ the estate OF John tiflBh-
| hy Claiming RhuYe lnnds 10 prlouB
lhrrcl0l between the said niue hens
equally leaving out Of consideration
Marin l.oulHn lGdenH, -
seventh The said nine hclrs soldnll
their allolmcnls 10 Innocent purchpa-
crs for yaluo, between 1850 nnd 1900,
executing warranty deeds, which reellcd
the orders Of court aud tho partition
aforesaid, etc,
Elghth-'lhc partition aforesaid be-
tween the nine heirs Of Iohll GrlRhP
waa equal without any regard for lht
community lnlorcnts Of hs wife, or the
rights Of her child hy hey last marriage
Nlnlh--At the partition Daniel ~
Griglhy, being n minor eleven year,
old, was represented by guardian,
ANA after becoming of age lac sold the
portion allotted 10 HIM, executing deed.
with fail warranty aud rccltlng sulo
partition, etc, selling n part ~ early
~ 1860,
Tcnth-NlNrlN louisa was born Jun,
18th, 1913, aud was therefore about
five years old NJ the time of partition
She married August 9th, 1859, being
sixteen years and two months old
She moved 20 Louisiana, ana durlnt
the war her husband died. she rr'
turned to Texas In 1865 and has mar
ricd John W. Swlnllc,
Upon this safe OF lOots Daniel u
Gri5shy and Maria h. SwIndic, iolne,
10y her husband, have brought suit II
the district court of Dallas county
claiming that their mother owned ,
community interest of one-hpli of sal,
land. and that said Marta Is cattle,
10 one.slXth Of the whole, ANA tina
said Daniel y. is entitled to one-lhir'
Of Onc-half in right of his mother
interest, and one-nlnth of one-hali II
right Of his iather's interest,
The presumption Of law being tina
all property acquired during marng,
Is community property, unless the con
trary is proven, 1t Is evident that Tho
lands in controversy must be regarded
as community property, and that th,
widow of John Grigsby ut his dealt
was the owner of one-half thereof
Had the claims Of the plaintiffs beel
presented ut the time Of partition, OF
ns soon as the parties became of age
they might and perhaps ought to have
recovered; hut after such long lapse
of time--not settingup any claim until
the filing of this suit, August 18th, 1877
AFTER acquiescing in the action Of tho
probate court and the partition for such
Il long time, anduntil the property hat
greatly increased IN value aud very
numerous valuable improvements hav,
been made thereon by innocent pur
chasers, it seems that now they ought
not TO recover.
First i consider that Daniel b
Grigsby Is estopped by the partition
made in the probate court of Anderson
county, and by his acts Of confirmation
in the sale of his allotment after arriv
ing at his majority. The case OF Mil.
lican vs.. Miilican, 81 Tex, 430, is ii
point where it is held, of one who is
not a party to the partition accept the
portion allotted to him, and afterwards
convey it by deed, referring to the par
ttiun rs his source of title, he will b(
concluded as respects the pr0perB en-
Traced in tie PRACTITIONER The case un.
der consideration iS stronger than that
one, as in this partition Daniel Il
GrIgsby was represented by his guard
ian in form and manner rs required by
law, and he accepted The portion al
lotted To him and decided ii to other,
after becoming of age.
Second--Maria H. Swinde, not hay
ing been party TO, or n beneficiary ii
the partition, the question arises, vi
her claim barred by the statute of lin
| itations?"
The three years statute of limitation!
will not apply, as there must be adverse
possession under title or color of title
Maria l.. was not a party to the parti
tion, and her interest as heir in right
of her mother could not have passed by
the partition, or amy conveyance by
others under it. So far rs her interest
is concerned, therefore, there can bt
no title or color of title against her
unless it is by deed from her or hel
mother, of which there is no pretence
This point is clearly settled by the cas-,
of Thompson VS.. Gregg, II Tex, 507.
The five years statute is in the fol-
lowing words; Gle, she or they who
shall have had five years like peaceablt
possession of real estate, oultivating
using or enjoying the same, and pay.
ing tax thereon, if any, and claiming
under deed or deeds duly registered
shat be hcld 10 haze ftW tile I)reciutlial
| an falffiy1o ~ otto poe Mir ,pt tr,4o