Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-09

~ Turton. chief justice; II. o. Head
and l. w. Stephens, associate justices;
w l.. Hun. clerk.
No. ST.. T. Dycis. appellant. vs.. T.. w.
Hart, If n. appellee. Appeal from the dis
trlct court ~ Archer county
OPINION.
This suit was Instituted I'm the district
court OF Archer county by 4. +. Dycus. as
plaintiff. against T.. W. Hart, az dctcn.
dnni. subsequently Mrs ~ a. Hart, wire
uf J.. w. Hart. made herself party de-
PENDANT Tho pluiuiiu4 sought tu recover
$50 urrps of land ONT Of tie Michael FW-
ming survey, lying In Archer county. The
nnce executed 10y George Finuln and Marx
LaYcry alleged lO be- heirs Of Mlchucl Fan
ming. ln whose nufuc, or to whose heirs the
original certificate and patent issued. u
was proved That Gourge Finuiu and Mark
Luycry were the heirs uf Michael fiuuiu
aud 10 was also contpudcd by plaIntiu that
Nichurl Tanning iud Michael Iiuniu was
The same person. This question Of identity
was submitted to the jury aud was solved
against the plaintiff
II appears from bin NJ exceptions that
the defendant l.. W. Hart IN March, 1856
purchased The luud Zoo controversy from
Gcurgc ~. Finulu, "a son uf the George
Iuuin under whom appellant claimed by
decd previously executed. ny mcuus ~
this conveyance from Gvurgc ". Fiuulu. 10
appellee Hart the pluiutin sought 90 place
dVttudnuis iu the attitude of claimants uu-
der common Fuulcr " title. Defendants
evidently ami naturally solicited tu sever
themselves from this embarrassing cunucc-
ton, nud prvferring 90 occupy the pogi.
ton ~ naked frrSpussprg He'd q plea dis
claiming oil tile la the land through George
Finuiu ur George T.. Flnniu. and giving
notice that they would not rely upon any
Interest of George liunlu on George T..
Einniu or Mark Luvrry or amy Of the
tiuniu family This disclaimer was sus.
tulnrd by The court and the plulutn was
forbidden 10 use the deed referred to for
the putpusc ut showing that the parties de-
rulgn title from common source. In this
"" think the court erred. In the case Of
l'urns vs.. Con. 40 lcNus 23O our supreme
court holds that defendant "muy not de.
lt"i lIr rule or common source by de.
cluraiiun TINT hn does not claim under g."
II, Us "a matter OF fact the defendants de-
rnilu their title ron the hClrs ug Michael
Fimu they thereby uduit tho validity ~
th1t tltlc aud they Will not be permitted To
defgut H. 10y showing nu outstanding title
ln the heirs ~ Michrcl Tanning, with which
thcy are not Ia any way connected Uiloycr
W. Ihuluna 70 ltNts, 5OG,
Plaintiffs titlc ~ derived through n deed
from one John T.. Scott 10 pulutl0. exc.
rutCd iu May, 1850 John J.. Scott claimed
under a deed to himself by the heirs ~
Michael Fiuuln, dated March q. 1850. ln
lStl John j. scott conveyed the land la
question 10 his brother. Levi Scott n resi-.
dent ~ another state. The deed rccltcd the
Texas and settle upon the land: Levi. I'M.
Willing a. abide hy this condition. returned
the deed tu nix brother. ,yhrroupou. the
Inter erased the words. expressing the con
diu1n, ana again sent II TO Levi, by whom
" was held until February. 1852 when he
again returned II To John l.. scott This
decd was never recorded. II does not up
pear whether or not n was destroyed Al
the time Of the sale tu plaintiff by John /
Scott IN May 1880. the latter rCfuitted To
hiS brother, Levi 500 ~ the $500 paid los
Dycus in consideration for the land
Appcllccs contend that even under the
common source OF title with which they
rr sought tu bee affected. there rs nm oui.
standing legal title In Levi Scott which viii
Low Scott returned the deed tu hls brother
John l.. Scott. in February. 1881 10 WINS
tue intention of tile two that John H. Scott
should hr thereby rriuypstel with tho tltIr
20 the land. We ARE OF opinion thnt tbr
Former would hr cstopprl from clnining
the property The existence uf this cstop.
pei however, depends upon the existence
~ "a" Intention specified unless that Ian.
tcuuon existed The surrender ~ IA dcrl
coulu not operate to dlycst the tiuc uut
or Lew scott anal rcvest IL 10 his brother.
Soc also LuUuWsh VIZ. smith decided Nny
~ lNi' A. We are not prepared to gny
mat ihr evidence does not Indicate this I'M.
t'n,inn We are unable io sustain this con-
John l.. scott speaks Of this deed IA n
IHl WNlnl Tue record, however, elsewhere
W,',l!nttS " As y conveyance tu the uud
words "uuit claim" are actually uSrJ If
the deed nevertheless purportrd To convey
We land Itself and not The mere rlght or
iidt OF the glantur Jchu l.. Scott nud
II the pluintin paid the purclnsc i,o1, ,
without police of amy claim by Levi Scotf
ne would DE protected MS an Innocent mr.,
Chlser against the unregistered dced nf
W. lhiler' uuchnrdson w. Love, ~ TeXus.
@W. Under such circumstances il couii
not hc claimed that there was nm ant
standing legal title prcculng the plnlntir
rom recovery, Tho court did not ON. ia
lrfuVinw the snCplnl charge rcuupst,J 1,,.
appellant and which We think, was unon
the weight uf the evidence.
For tue error pointed out the Judgment
rs reversed ana Tie cause rcmHndpd
II 4 III