Ford v. Ballard

*378 STEPHENS, Associate Justice. This is an action of trespass to try title, and for partition, instituted in the District Court of Haskell County by W. C. Ballard, A. C. Foster, Alice Tankersley and her husband Dock Tankersley, against H. C. Ford, T. W. Mays, J. E. Norton, and W. H. Campbell. . . There was a trial without a jury, which resulted in a judgment in favor of Ballard and Foster for an undivided interest of 483f acres of the land sued for, and in favor of Alice Tankersley and Dock Tankersley for an undivided interest of 400 acres, and in favor .of the defendants severally for the other portions of the land, except Campbell and Ford, who were adjudged to take nothing and to pay the costs of the suit. This judgment was agreed to by all the defendants except Ford, who prosecutes this writ of error. The court below filed no conclusions of law and fact, but there is a statement of facts in the record which shows that there is no controversy about the facts upon which the questions of law arise. The first assignment of error complains of the action of the court in overruling the application of plaintiff in error for a continuance. The application was made and sworn to by the attorney, and sought to continue the cause to procure the testimony of his client, plaintiff in error. Our conclusion is, that the application failed to show proper diligence, and that the testimony sought to be-obtained was not material, and that therefore the same was properly overruled. The second assignment complains of the admission in evidence of the deed from Mrs. N. L. Abbey to plaintiffs Ballard and Foster, which conveyed to them the entire tract of land in controversy, to-wit, the John Connor survey of 1744 acres, dated April 30, 1889; the- ground of objection being that this deed bore date subsequent to the date of the ouster, as alleged in the petition, and because it purported to be in lieu of a former deed, without the production of the deed in confirmation of which it purported to be made. The question here raised is decided adversely to plaintiff in error in Jenkins v. Adams, 71 Texas, 1. The third, fourth, fifth, sixth, and seventh assignments complain of the exclusion from the evidence, (1) of a deed from Mrs. Alice Tankersley to W. E. Rogers, dated May 24, 1873; (2) of a deed from W. E. Rogers to plaintiff in error, dated February 25, 1875, conveying 400 acres undivided interest in the land in controversy. These deeds were excluded on the ground that the husband of Alice Tankersley did not join her in the deed, it being alleged and proved by plaintiff in error that the land was her separate property at the date of said deed. • The record shows that both Rogers and Ford knew that said Alice Tankersley was a married woman; that Rogers made the trade with her husband with the knowledge and consent of his wife, and paid the principal part, if not all, the purchase money to the husband, except that portion .which, in the subsequent sale from Rogers to Ford, the latter agreed to pay and did pay *379 to Dock Tankersley, the husband of Alice; and that this sale was acquiesced in by said Tanlcersleys for about fourteen years. The record contains no evidence of any concealment, misrepresentation, or other improper conduct on the part either of the husband or the wife, except as the bringing of this suit might be so construed. It must, therefore, be held that these deeds were properly excluded, the wife’s deed to her separate property without the joinder of her husband being a nullity. Cannon v. Boutwell, 53 Texas, 626; Peak v. Brinson, 71 Texas, 310; Etheridge v. Price, 73 Texas, 597; Johnson v. Bryan, 62 Texas, 623; Williams v. Ellingsworth, 75 Texas, 483. Delivered November 22, 1892. The remaining assignments complain of the judgment rendered. In so far as complaint is made of the decree of partition, the objections can not avail plaintiff in error; because, having been denied a recovery of any interest in the land (if the judgment' to that extent be valid), he would no longer have any interest in the partition proceedings. It is insisted that inasmuch as Mrs. N. L. Abbey conveyed, in the year 1871, to J. D. Abbey 1280 and to Jack Davis 320 acres of the land in controversy', an outstanding title would defeat any recovery by appellees. As these two undivided interests amounted tti 1600 acres, the entire tract containing 1744 acres, it follows that the subsequent deed from Mrs. Abbey to Foster and Ballard conveyed at least an undivided interest of 144 acres. This would be sufficient to enable them to recover the entire tract as against plaintiff in error. A deed made by said J. D. Abbey in the year 1873, to Alice Tankersley, conveying an undivided interest of 400 acres, was sufficient tó enable Tankersley and wife to maintain this suit in connection with their cotenants, Foster and Ballard, against plaintiff in error, who was in the attitude of a trespasser. It follows that the judgment must be affirmed. Affirmed. Chief Justice Tarlton disqualified and not sitting.