21 S.W. 572 | Tex. App. | 1893
Lead Opinion
Sometime prior to 1843, Dr. G.W. Long died in this State, and administration was had upon his estate in Fort Bend County. At the time of his death, Dr. Long left surviving him his wife and six whole brothers and sisters and four half-brothers and sisters, but no children. He left a considerable estate, consisting of land and personal property, among which was his own headright certificate for 1280 acres of land. One of his sisters of the whole blood was Mary Williams, wife of Duke Williams; one of his brothers of the whole blood was Ed. M. Long; three of his brothers of the half-blood were N.T., W.H., and J.J. Macon. Prior to the partition herein referred to, the four last named conveyed all their interest to Duke Williams, husband of Long's sister Mary above named.
On June 1, 1853, one of the parties interested in the estate of Long filed a petition in the Probate Court of Fort Bend County for a partition of said estate, making Duke Williams, with several of the heirs, parties thereto, but did not join Mary Williams, Ed. M. Long, and the three Macons above named therein. The nonresident heirs who were made parties were duly cited by publication.
On the 25th day of July, 1853, this original petition for partition was amended, making the heirs who had not been joined as above set forth parties to such proceeding, and dismissing as to Duke Williams. It appears from this amendment that these new parties were nonresidents of this State.
At the July Term, 1853, a decree was entered ordering the partition of this estate, but it does not appear from the record that all the parties had been regularly cited to answer plaintiff's petition other than by a general recital in the judgment.
At the August Term, 1853, the commissioners appointed by the above *397 judgment made their report, which was confirmed; and by the partition so made, the 1280 acres certificate above referred to was given to Mary Williams, Edward M. Long, and the three Macons above named, so that by the terms of the decree, in connection with the transfers to Duke Williams above recited, the whole of this certificate became vested in Duke Williams and his wife, Mary. The land in controversy was afterwards located under contract with Duke Williams by virtue of this certificate.
In 1864 or 1865 Duke Williams died, leaving his wife, Mary Williams, and five sons and daughters surviving him. Appellees claim the interests of two of these children, and appellant the remainder; and the court below rendered judgment upon this basis in favor of appellees, from which this appeal is prosecuted. Appellant claims under deed made by Mary Williams, the surviving wife, to J.J. Williams and M.F. Kennedy, the last named being husband of one of the daughters.
Appellant's first assignment of error attacks the validity of the decree of partition above referred to, upon the ground that it affirmatively appears from the record that Mary Williams, Ed. M. Long, and the three Macons were nonresidents of this State, and had never been properly served with citation; but we are of opinion that inasmuch as this decree constitutes the common source of title of appellant and appellees, that its validity is not material in this case. Had appellant proposed to show that his interest would have been greater by disregarding this decree than by upholding it, he would not be precluded from so doing; but inasmuch as his interest, as well as appellees', in the land in controversy would be reduced by going back of the decree, we think he should be held to the common source. Burns v. Goff,
Appellant, however, after the rendition of the judgment in the court below, made a motion for a new trial upon the ground of newly discovered evidence, which was overruled, and this action of the court is assigned as error. By this newly discovered evidence it is proposed to prove, that in their lifetime Duke and Mary Williams entered into a verbal contract with their son J.J. Williams to give him this land, with other property, in consideration of his agreement to take care of them during the remainder of their lives; and that after the death of Duke Williams, Mary Williams, his surviving wife, made the deed to J.J. Williams and M.F. Kennedy above referred to in pursuance of this contract. It seems that Duke and Mary Williams during this time resided in the State of Tennessee, but the record does not show that the law of Tennessee in reference to community property is different from that in this State, *398
and we must therefore presume it to be the same. Bradshaw v. Mayfield,
Appellees contend that this motion should have been overruled, because it would tend only to show a verbal contract to convey land, which would be void under our statute of frauds; but we are of opinion, treating the Tennessee law to be the same as our own, the survivor of the community would have the right to convey the community property in satisfaction of an obligation of this kind. Brewer v. Wall,
Even if it be conceded that Duke and Mary Williams could not have been compelled to comply with their verbal contract to convey this land, it would seem that upon their refusal so to do, Duke Williams would be liable upon a quantum meruit for the value of the services rendered thereunder (Sprague v. Haines,
We are therefore of opinion that this alleged newly discovered evidence was material; and if negligence is not to be imputed to appellant for his failure to discover it in time for the trial, his motion for a new trial should have been granted to enable him to produce it. The fact that such evidence can be produced, is shown by an affidavit made by M.F. Kennedy and a letter from Thomas Duke Williams, a son of Mary and Duke Williams, Sr.; and appellant's attorney makes affidavit, that he had been diligent in looking up evidence in the case; that he had written a number of letters to Kennedy and to Thomas D. Williams, but did not learn of the facts stated in his motion as above set forth until after the trial, and from these affidavits it would seem that he had been reasonably diligent in the premises.
In speaking of this question, Chief Justice Wheeler, in Mitchell v. Bass,
Taking the affidavits in this case to be true, we are of opinion that they show reasonable diligence on the part of appellant and his attorney; and presuming the law of Tennessee to be the same as in this State, we think the evidence material, and that a new trial should have been granted.
Let the judgment of the court below be reversed and the cause remanded for a new trial in accordance with this opinion.
Reversed and remanded.
Addendum
Appellees' motion for a rehearing can not be granted to enable them to bring up a more perfect record by certiorari. This question is fully considered on a motion for rehearing in the case of Ross v. McGowen,
Overruled. *400
