Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-03-03
COURT OF APPEALS.
Full Tsn Of Decisions Rendered Ia The Fort
Worth District

No. 1O4 n. c. Hibum, appellant, vs.;
y. Il. Harris et al. appellees Appear
from the district court Oh Cooke couu-
OPINION.
Some time prior to 1913 DR. 9. w.
Long died In this state and admlnistra-
ton was had upon his estate nm tort
Bend county. AZ the time of his deat1
Dir Long left surviving him his wire anu
six whole brothers and sisters ana i9Hr
half-brOthers and sisters, but no cihl-
dren. He left a considerable estate
consisting of land and personal prop
erty, among which was his own hea1-
right certificate for 1880 acres OF land.
One OF his sisters of the whole blood was
Mary Williams, wife Of Duke Nlliaihs;
one of his brothers of the whole blood
was Ed VI. Long; three of his brothers
of the half blood were n. IT,, w. H. anu
j. j. Macon Prior 10 the partition hercin
referred TO the four last named convey
cd an their interest to Duke Williams
husband of Longs sister Mary. above
named. On June l., 1875. one OF the par
ties Interested In the estate Of Long,
filed q petition In the probate court Of
For Bend county for a partition OF salu
estate. making Duke Williams, with sew
ernl Of the heirs. parties thereto, but dld
and the three Muc0ns above named
thertm. The nonresident heirs who were
made parties were duly cited by pubhca-
ton. On the 2jth day Of July, 1873 this
original petition for partition was amend
ed, making the heirs who had not been
joined. as above set forth parties
To such proceeding and dismissiug as TO
Duke Williams IL appears from this
amendment That these new parties Were
non-rcsidents of this state. At the July
term 1901, q decree was entered ordering
the partition of this estate. but III does
not appear from the record that all the
parties had been regularly cited to an-
swer plaintiffs petition other than by a
general recital IN the judgment. At the
August term. 1853 the commissioners
appointed by the above Judgment made
the l2S0 acre certificate above referred
to was given 90 Mary Williams, Edward
NJ. Long and the three Macons above
named, SO that 10y the terms of the de-
cree. in connection with the transfers,
Duke Williams above recitrd, the whole
Of this certificate became vested In Duke
Williams aud his wife. Mary. THIS
land i'm controversy was afterwnrd l0cat-
cd under contract with Duke Willnms
by virtue Of this certificate In 1851
or 1865 Duke Williams died, leaving
his wife. Mary Williams, and five JPns
and daughters surviving him. Appellees
flNlil the lNNtlthls OF Two Oh ANtHt iUli-
drcn and appellant the remainder, aud
the court below rendered Judgments up
on this basis In favor of appellecs, from
which this appeal Is prosecuted. Ap-
pcllant claims under deeds made by Mary
Williams, the surviving wife to j. j.
Williams and NJ Il. Kennedy, the last
named being husband of one Of the
daughters
Appellants first assignment of error
~ III III a. s.N
partition above referred 10 upon the
ground that Il athrmntivcly appears
from the record that Mary Williams,
Ed NJ Long and the three Macons were
nOn-resdents OF this state and had never
been properly served with citation but
we are Of opinion that inusmuch as
this decree constitutes the common
source titlo of appellants and nppcnees
that It's validity Is moi material in this
case. Had appellant proposed to show
that his interest would have been greater
| by uisregarding this decree than by up
| holding IT, he would not be precluded
| from 50 doing, but innsmuch as his In
| tercst, as wcll rs uppellees', In the land
| In controversy would be reached by gO-
| ing hack Of the decree, we think he
| should be held 10 the common source.
| Burns vs.. Goif, 20 Texas, 23O. II would
| therefore seem that appellants and APP
| pcllecs interest tx the same whether the
decree be held valid or whether IL be
| only held as evidence of common source
| Of title, and IL this was the only cause
| Of complaint the Judgment of the court
| below should be affirmed. Appellant,
however, after the rendition of the judg-
| meut in Chc court below, made Il mo-
| ton for new trial upon the ground
Of ncWly-disCoycrcd evidence which was
| Overruled and this action Of the court
| IS assigned rs error by this ncwly-dis-
covered evidence Il is proposed TO prove
| that in their lifetime, Duke and Mary
| Williams entered into u verbal contract
| with their sou, j. j. Mllhnms TO give
him this land with other property In
| consideration OF his agreement 10 take
! care OF them during the remainder of
| their lives and after the dcuth of Duke
| Williams, Mary Williams, his surviving
| wife, made the decd 10 j. j. Williams
aud NJ. y. Eenucly. above referred 10
In pursuance of this contract Ii seems
that Duke and Mnry Williams during
this time resided In the stnte of Ten
nesScc, but The record does not show
mat The law of Tennessee IN reference
TO community property Is different from
that in this state, aud we must, there-
fore, presume it to be the same Brad
shaw vs.. Muyhcld. rs Texas, 2i Por-
chcllor vs. Browuson, 30 Texas. 555:
Green vs. Hugely D Tcxas, $50; Aber-
| crOmbic w. Stllhuan, II Texas. 500.
| Crosby vs.. Houston, l Texas. 2O3; James
VS.. James, 81 Texas ISL: Brown ON
Jurisdiction, section 81. Nppellces con.
tend that this motion should have been
OvcrruCd, because IL would ONLY fond
TO show n verbal contract TO convey
land which would be void under orr
statute of frauds but we are of opinion
treating the Tennessee law 10 lie the
same as ours, the survivor of the com
munity would have the right To convey
the community property I'M Satisfaction
of an obligation of this kind. Bre,yer
VS.. Wall % Texas, HSA: prmm vg R,r-
ton, Is Texas, BOG; Long vs.. WnUkcr
~ TeXas, 1I3; Gurnctt vs.. lobe "a
Texas, 600. Even If il be conceded tbot
Duke and Mary Williams could not hove
been compelled 10 comply with their
verbal contract TO convey this inn5 II
would Soon that upon their refusal so
10 do, Duke Williams wonld be iiabio
upon quantum mcrit for the value of
I've services rendered thereunder
lhpmuge W.. Haynes OS Texas. 9I5l
And ms this would b0 community debt
the right OF tie survivor To convey COM
muhlty property In satisfaction thereof
would seem to be clear. We are. tLere-
fore, ot the opinion that this alleged
heWlY-jlsNovcrcd evidence was material
and u negligence is not TO be imputed m
appellant for his failure to discover Il
ln ume Tor the trial, his motion for n
new trial should have been granted IN
enable him to produce H.
The fact tlmt such evidence can be
produced is shown by an Affidavit mnJc
| by NJ. F. Kennedy and a letter from
| Thomas Duke Williams, a son of NIery
ana Duke Williams, Sr. and appellant