Puryear v. Friery

This suit was brought by appellee in form of trespass to try title. The court below held that the defendant had limitation as to that portion of the land upon which he had built a house and garden, and that the plaintiff was entitled to recover seventeen-thirtieths of the remainder. The trial judge filed the following conclusions of fact and law: Fact. — "1. Patent granting the land in controversy to David G. Williamson, dated December 6, 1845. "2. Conveyance of the land by David G. Williamson to Robert H. Wynne, dated October 18, 1838, filed for record in Hays County March 15, 1887. "3. Deed from Robert H. Wynne to Frederick Schmidt, August 8, 1846, recorded in Hays County March 1, 1887. *Page 319 "4. Certified copy of partition in 1881, in which the land in controversy was allotted to Ch. Schmidt and B. Schmidt. "5. Deed of Ch. Schmidt and B. Schmidt to Chas. Wolf, 26th of June, 1883. "6. Deed of Chas. Wolf to W.R. Puryear, 16th of April, 1884. "7. Deed of Ann Williamson and of Phebe S. Evans, joined by her husband, George W. Evans, to John Friery, conveying the land in controversy, 27th October, 1884, filed for record in Hays County 10th December, 1884. "8. David G. Williamson died in 1850, leaving surviving him his widow, Ann Williamson, who died in 1886; his daughter, Phebe S. Williamson, now Mrs. Evans, and still living; Albert H. Williamson, who died in 1851; and James D. Williamson, who died in 1871, leaving wife and child as his heirs. Mrs. Callahan was the only child of Mrs. Williamson's first marriage at death of Albert H. Williamson. "9. In 1887 W.R. Puryear put a house on the premises and inclosed a small patch for garden purposes, which have been occupied by his son-in-law ever since. Puryear put posts around the tract and bought wire, from time to time, with the view of fencing the land, but he never actually inclosed it until some time in the spring of 1892. Puryear never did live on the land in controversy, but resided on an adjacent tract of land, and the land in controversy was not wholly inclosed for pasturing purposes until the spring of 1892. "10. Plaintiff had no actual nor constructive notice of the conveyances from Williamson to Wynne and from Wynne to Schmidt. Conclusions of Law. — "1. The evidence shows a perfect chain of title to the defendant, Puryear, but since the plaintiff, Friery, purchased from the widow and daughter of the original grantee, without actual or constructive notice of the sale by the latter during his lifetime, the plaintiff acquired title by his purchase to so much of the land as Mrs. Williamson and Mrs. Evans were entitled to as heirs of David G. Williamson, and of the children dying subsequently. "2. Limitation did not commence running in favor of defendant until the spring of 1892, and limitation is therefore no protection to him, except as to the house and inclosed garden patch. "3. Puryear is entitled to the house and inclosed garden and to an undivided interest of thirteen-thirtieths of the remainder of the tract, and plaintiff is entitled to an undivided interest of seventeen-thirtieths of the land." Opinion. — Appellee objects to the manner in which appellant has presented the case in his brief, and there is merit in some of the objections. However, we have considered all the questions we understand appellant to rely upon for a reversal, and conclude that no ground for reversal is shown. Having only established the plaintiff's title to an undivided interest, but *Page 320 little in excess of half of the land, there was no error in not considering the question of the defendant's improvements. The record does not show that the defendant offered to prove by Wolf that he paid $800 for the land, as stated in appellant's brief. It shows that the defendant offered to so testify, himself, and was not allowed to do so; but there is no assignment of error complaining of that ruling. There is evidence supporting the finding of the court that appellee was an innocent purchaser for value, as well as the other findings; and, the facts being as found, the judgment is correct, and it will be affirmed. Affirmed. OPINION ON MOTION FOR REHEARING.