Norfleet v. McCall

HENRY, Associate Justice This was an action of trespass to try title brought by appellees against Fannie B. Trench and her husband. *238 The appellant intervened in the cause, alleging that he owned the land. • - • It was agreed that W. H. H. Baldridge was the common source of title. It was proved that Baldridge conveyed the land to Samuel McCall and his wife Eugenia McCall by deed dated the 19th day of September, 1857. Eugenia McCall, before she married McCall, was the widow of James S. Norfleet, Sr. The intervenor was her son by that marriage. The defendant Mrs. Trench was a daughter of Eugenia Norfleet, afterward McCall. The plaintiffs were the only heirs of Samuel McCall, deceased. Eugenia McCall by her last will devised the land in controversy to the defendant Fannie Trench. The intervenor contended that the purchase money paid Baldridge for the land when he conveyed it to Samuel and Eugenia McCall was the proceeds of the sale of negroes belonging to his father’s estate, in which he had an interest, and that the'title was- held by the grantees in the deed in trust for him. Intervenor was upward of fifty years old when this suit was begun. The plaintiff brought evidence that the purchase money paid to Bald-ridge for the land was the separate estate of Samuel McCall, acquired by him by a sale of his property in the State of Mississippi. The defendant introduced evidence showing that it was paid with the proceeds of the sale of negroes belonging to the estate of the father of the intervenor.. The intervenor introduced some evidence of declarations made by his mother that she had given the other Norfleet children their part of their father’s estate and that intervenor should have his part at her death. He testified that these. declarations of his mother and her age and feeble condition were the causes of his not suing to establish his claim to the land. He introduced no other evidence to account' for or excuse his delay in suing to establish his claim. He testified that he had several brothers and sisters, all of whom were then dead except Mrs. Trench, the defendant, who was his half-sister but not his father’s daughter. The evidence showed nothing further with regard to who were interested in the estate of the father of the intervenor. The court gave an appropriate charge upon the issues between the plaintiff and the defendant. With regard to intervenor it charged that he could not recover because the trust'had not been proved and his claim was a stale demand. The jury found that the land was the community property of the father of plaintiffs and the mother of the defendant, and-judgment was rendered dividing it equally between them, of which neither of them *239 complain. . The intervenor alone prosecutes this appeal and complains of the charge of the court. We think the charge was correct. If there was any evidence tending to establish a trust in the land in favor of plaintiff it altogether failed to establish the extent of his interest. Even if he had sufficiently proved the existence of a trust in his favor his long and unexcused delay in suing to establish it was properly held to be a bar to his recovery. The judgment is affirmed. Affirmed. Delivered March 13, 1891.