Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-07-03


eniitle appellant TO Il reversal
The Judgment of the court below should
therefore In all things be affirmed
HEAD
Associate Justice
Clara II. Crow ct al, appellants, vs.
James Fiddler Of a., appellecs Ap
peal from tho district court OF Cooke
county.
CONCLUSIONS or FACT
This action Of tresspass TO Try title
WAS brought July 81, 1870, by Elizabeth
NJ, Grow and Clara Il. Crow 5oIned by
her husband. John II, Grow, Ir), 10 re-
cover each an undivided one-fomth inter
est in lIid acres Of luud situated IN
Cooke county. known as the Albert Mar
tin survey. The defcnscs iuterposel We're
pleas of not guilty, statutes Of limitation
of five and ten years aud improvements
made In good faith. The several de.
PENDANTS also prayed to have their war
rNntOrs yonched In, and for recovery
oyer against them in cnsc the plaintiffs
should prevail In the suit, but the record
fails TO show that the warrantors were
cited In avoidance Of the pleas of limi-
inilon. The disability Of minority was al
legged, There was q trial without a jury,
resulting IN q judgment in favor Of the
defendants, rendered upon the following
conclusions Of law and fact.
First That by deed dated July 81,
1850. X. ID. stone ns administrator Of the
estate of Green Stallcup, deceased. In
pursuance Of an order Of the probate
court of Cooke county, sold the land
Ia controversy To Thomas a Bradley for
the sum of SiTt.2O That said order of
court directed said sale To be- malc upon
credit of twelve months. That said Bra
ley IN part payment for said land, exc.
cuted his note for S'i0T II, dated July
3, 1850, with w W. Foreman as surety,
due twelve months altcr date with in
terest at II per cent per nnnum after
maturity. Said deed retained a vendors
ment of said purchase money. There is
Hen upon said land to secure the pay
no direct evidence as 10 when or how
the remainder of SI11.2O was paid. From
the circumstances iind that It WAS paid
before the institution of the suit to collect
said S3OI ~ note.
Second-fhat on Nov. s, 1861, said
Stone as administration Of Stalcup's cs-
tate in the district court of Cooke cOuu-
y, recovered formal judgment against
w. W. Foreman as surety on said note
for the amount due therein. No judy
ment was rendered against Brnlcy. tile
suit MS TO him having been dismissed,
and no foreclosure Of the vendors liciI
ON said land was had.
Third-rhat by virtue Of an CXecu-
ton issued upon said judgment, dated
June 30, $50, said land was levied upon
rs the property OF said Braley. and by
the sheriff of Cooke county, by
deed dated Aug II, 1870, sold
to II. Il. Scott. and each
of the defendants has regular chain
of title to the portion said land claimed
by item from said Scott.
l'ourth-Ihat plaintiffs, Clara II.
Grow and Elizabeth Grow, are tho
daughters md only surviving children
of said Thomas A. Bradley aud Mary
Ann Braley; that said Thomas A. Bra
ley aud Mary Bradley We're married Ia
the state of Missouri on the 18th day OF
October, 1858. That the maiden name
of Mary Ann Bradley was Mary Ann
Stallup aud She was the sister of Green
Stallup Fiat Mary Ann Bradley died
May 80, 1869. and that Thomas 4. Bra
ley died Nov. IL, 10. That plaintiff
was born ON July s. 1909 and wa9
married 10 Benjamin Crow on May 81,
1852. and that said Benjamin Grow died
April n, 1856. That Clara II. Grow
wns born on Aug. Is 1864, and married
John H. Grow, who still lives, on June
-, 1887.
i1ifth-rhat the money paid by Thorn
as A. Brnlcy on the purchase Of said
land was acquired before he came TO
Texas, and that by the laws of the state
of Missouri, where ThOmns A. Bradley
aud Mary Ann Braley were married,
the property acquired during marriage
became the separate properly of the hus'
band
SiNth-Thnt each Of the defendants
has established his plea Of the statute
of five years Limitation against the
pniutlff, Elizabeth NJ. Crow but not
against Clara h. Grow, and that each
Of the defendants is ''posesor IN good
faith Of the land claimed by him AMI
has made permanent and valuable I'M
prOvements thereon to the value stated
in the statement Of facts filed In this
case.
As matter of law ] find TINT tho
land In controversy having been paid for
to the extent of Sib3.15 Of the purchase
price by Thomas A. Brnley by money he
acquired In the state Of Missouri, it
became his separate property. aud NOT
the community property ot himself aud
his wife, Mary Ann Bralcy, and his
right thereto having been barred before
his death. PLAINTIFF cannot recover
through him.
Ana / iind that though The execution uf
date the 10Th day Of June 1910, by viz
tue Of which the lands W controversy
were sold hy The sheriff Of Cooke county
to H. Il. Scott was void. The estate Of
said Stallcun having received the bene-
fit Of said sale. It was sufficient To pass
the title Of said esiat, 70 sad lands 20
the purchaser ne sni1 sal,, Aud the
said ThOs. A Bralcy having ,nevor paid
for said lands and q vendors lien having
hon reserved Ia The deed 70 him. the
title Of the S,nllcup estate therein. which
passed to the purchaser AZ sald sale. wns
superior TO the tlilr Of said Braley. mud
l. sufficient 10 lefCat q recovery hy plain.
tins. aud hence / render iaaginent for
it fendints."
CONCLUSIONS or LAW
The controlling question IN the cnse Is
raised by the hrst and SECOND assign
ntnts Of error. which require W. 10 pass
support the fifth fielding quoted above.
upon the suilioiency 81 the eridree 10
the contention Of appellant being thai tho
tGgnrnt presumption that pr9piriy nc
quircd during marriage y community
property. was not overcome BY the fesii-
inony The record does not present a
casr Of conflicting evidence but nniy 4
few mcafer facts from which ih CON
clusion Ia qncstlon was drawn il APP
pears thar after tho marriage Of Thomas
A. and Ainiy Ann Rralcy, which o.
crrred IN the state Of Missouri M o.
tobrr. 1858. they came 70 Texas.
whether Immediately on not dops not app
pear. hut that hey utm reSililg nt
gainesville Cooke county, az early NJ
December. 1850. aud r0uilnued ~ 50
reside for o year or more fb,Ttattcr. II
does not appear whctlei during that
i's~r their intention wns 70 rr,nuin IN
Texas or to return to Mlu9ifi- The