Booth v. ClarkBooth v. Clark
- Reporters:
- , ,
- Before:
- Pleasants
This is an action of trespass to try title brought by “the appellee against the appellants, William Booth, S. E. Green and P. E. McMahon, to recovеr the title and possession of a tract of 320 acres of land in San Jacinto County patented to the heirs of James Booth. . The petition is in thе usual form.
The defendants answered by a plea of not guilty,, and by cross-action set up title in themselves and prayed for a recovery of thе land.
The trial in the coúrt below was to the court and resulted in a judgment in favor óf the plaintiff for one-half of the land. From this judgment the defendants below рrosecute this appeal.
The certificate under which the land was located and patented was issued by the Board of Land Commissionеrs of Polk County on November 26, 1849, to James Booth “for 320 acres of land. James Booth died in 1842/ He left as his heirs at, law eight children. In 1862 W. S. Booth, who was a son оf James Booth, sold to his brother, David C. Booth, a one-half interest in this certificate. This transfer is written upon the back of the certificate and is аs follows: “For and in consideration of the sum of fifty-five dollars I do assign all my right to the one-half of the written certificate that I am entitled to for obtаining it out of the Land Office, etc., to David C. Booth. Signed and delivered on this the 18th day of May, 1862, Wm. Booth. Attest: A. E. Carnegie.”
At the time this transfer was made David C. Booth wаs married to Jane Booth. After the death of David C. Booth, and some time prior to 1865, his surviving wife, the said Jane Booth, sold the certificate *316 to William Lovett. This sale was made by Jane Booth in order to procure necessaries for herself and minor children.
The certificate of the surveyor attached to the original field notes shows that the land was surveyed for the heirs of James Booth and William Lovett. The patent was issued to the heirs of Janies Booth on February 20, 1879. It was delivered to Lovett and he paid the fees therefor.
There has never been any actual possеssion of the land. The appellee has a regular chain of title from Lovett to himself, and he and his vendors have rendered the land for taxes and paid all taxes assessed thereon since 1880. The defendants William Booth and ,S. E. Green are children of David C. and Jane Booth, and defendаnt McMahon has a power of attorney from the children of several of the other -heirs of James Booth. William Lovett and all of the children of James Booth are dead. It-is not shown that any of the children of James Booth other than the said William and David C. ever asserted any claim tо the certificate or to the land located thereunder.
The appellants have never paid any taxes on the land and have only recently asserted claim to an interest in the land.
. Upon these facts the trial court found that William Booth acquired a one-half interest in the certificate for his services in obtaining its issuance, and that Jane Booth, being the wife of David C. Booth at the time he purchased said interest from William Booth, it became the community property of “the said David and Jane, and her sale of same to William Lovett after the death of her husband for the purpose of obtaining necessaries for herself and minor children passed the title to the whole of said one-half interest to said Lovett.
Appellants’ first assignment of error attacks the finding of the court below that William Booth became the owner of one-half of the certificate for his services in obtaining same, on the ground that there is no evidence to sustain such finding. The contention under this assignment is that the reсital by William Booth in the transfer of the certificate to David C. Booth that he was entitled to one-half of the certificate • for obtaining - samе is not- • sufficient in itself to establish that fact.
We agree with appellants’ counsel that the recitals in this transíer> although the instrument is forty, j‘ears old, arе not in themselves sufficient to sustain the finding that William Booth was the owner of one-half of-the certificate at the time he transferred same to his brоther, and we-do not-understand the trial court to have so held. We-think, however,‘the .finding of the trial court‘upon all the facts in evidence that William Booth was entitled to a one-half interest in the certificate for his services in obtaining same should be ‘sustained. The record shows that the certificate was not issued until after the death of James Booth,-’’and in-order to obtain the-eérti‘ficate it was therefore necessary for some person to procure- and- present to -dhe board óf land commissioners” the-evidence‘showing-that said Booth w-ás entitled to same. *317 When the cеrtificate was issued it would naturally be delivered to the person who had procured its issuance. We find William Booth in possession of the certificate claiming to own a one-half interest therein as compensation for his services in obtaining it. He sells this interest to his brother, who must have known whеther or not this claim >was true, and presumably would not have purchased it but for his knowledge that William Booth had performed services which under an аgreement with the heirs of James Booth entitled him to a one-half interest in the certificate. The possession of the certificate remаined in David C. Booth until his death and then with his widow until she sold it to Lovett, who had possession of it until the land was located. Both William Booth and Lovett are shown tо have continuously claimed to own a half interest in the certificate after it came into their possession, and none of the other hеirs of James Booth are shown to have asserted any adverse claim. The certificate was located and the patent for the land obtained by Lovett, and he and his vendees have continuously asserted claim thereto and have paid all taxes thereon. The transfer from William Booth to David 0. was, as before stated, written upon the back of the certificate, and thus in the most effective manner gave notice to the other heirs of James’ Booth of his assertion of ownership to one-half of the certificate. This transfer has been an archive оf the Land Office for a number of years.
In view of all these facts and in the absence of any fact inconsistent with the claim of William Booth that hе owned one-half of the certificate, we think a transfer or a contract between William Booth and the other heirs of James Booth, whеreby he became the owner of one-half of the certificate for his services in procuring same, should be presumed. Davidson v. Wallingford, 88 Texas, 624; Huff v. Crawford, 89 Texas, 220; Stafford v. Kreinhop, 63 S. W. Rep., 168.
Thе evidence amply supports the conclusion of the trial court that David C. Booth and Jane Booth were married to each other at the time the certificate was transferred to the husband, and it thereby became the property of said community.
The transfer by Mrs. Booth after thе death of her husband for the purpose of obtaining necessaries for herself and children was unauthor- • ized as to the interest of the children in sаid certificate and their interest did not pass by such transfer.
From the conclusions above expressed it follows that the judgment of the court below should be reversed and judgment here rendered in favor of appellee for an undivided one-fourth of the land in controversy, and it is so ordered.
Reversed and rendered.