O'Fiel v. Janes

REPORTER SOUTHWESTERN died was the cause we do the cause on the ferred M. same tention interest, was set for trial 26th applied for was dismissed ties for cause was parties, senting want set for trial on the M. Allen the interest of either or heir tion pear and ticle death mentioned ance and may scire facias for the reason of such term duty legal death for, that where seven lant, ties prosecute the trial and administrator C. H. the time of H. on her instituted the sentative Under the [2] There It ^[1] Allen, late as Allen, jurisdiction of thereafter shown then shall July 31, 1923; after the death to the suit. be made day 1887 it of appear, It Is representative, nor Bates Verhon’s months Allen, the cause 12th survives, privilege verdict, motion, either March, 1924, thus prosecution about four appeared in prosecute judge think appeared of action. of O. the heir of the proceed appellant suggestion that, the motion June continued the contention is no day clerk defendant, entered continuances August, 1919, November, 1923, such husband may plaintiff in suit, suit, Mrs. Allen’s refusing decedent if H. Sayles’ erred^ provided death, M. of action to his 6, 1923; merit, been the court. by agreement and circumstances refusing thereafter, upon suggestion suit the It dismissal be December, 1923, said last-named Allen’s court erred from term the court. such suit. died years; that 0. H. that the of article Allen, executor, suit 12th of C. H. is cause be made in by agreement such 0. made a of record, to reinstate we Civil additional requiring * * * court, upon provided dismissing Mrs. name. And shall not no thereafter, H, cause to, such day after it deceased estate, that C. of plaintiff shall die think, the sole July, 1923, or Bates dismissal, party of action be necessity po estate Allen or interest the cause was it shall appellant, appellant Statutes administrator, shown Allen, Allen, reinstate the party because of if, Allen trans some one executor or legal one, be no open in the con no dismissing cause son, plaintiff December, term, nor pleadings is shown set, H. date, abate the same shown invoked plaintiff heirs of applica appear issue who shown, Allen’s on the that O. article by ar repre Bates to'ap repre Bates appel C. H. there court, Allen about same case par such such first wit, that who par suit in, at of between livered to defendant agreement, lic to use other, to homestead the vided streets 3. Dedication another, stead owners streets could 2. blocks, ing him, places held,, cates donment of such ter taxes thereon as ers, who sold a but later placed plat and fulfilled contracts another, is affirmed. 1. Homestead judgment such time. rendition of the sentative (Court Allen tiff.” Allen O’FIEL et costs were tion, cution streets for other irrevocably tion to thereon, it use. abandonment of matter of Affirmed. Compromise For the Dedication Where voluntary settlement for valuable considera- costs Where An .change of status of law. Where it such streets to Jan. number owner had intersected that C. H. Allen of into lots who constituted is who divided city accepted thereafter reconveyed such streets. irrevocably deed for of Civil binding. purpose reasons portion portion alleys, void, al, deeds law. public an owners, of real <S=> and his estate before that such being dedicating record, <@=>19 v. JANES of such lots 1925. thereby addition to use <@=>167 city, and settlement record, Feb. adjudged against Appeals rendered land as interest judgment, 19(1)— laying city property, and ratified use, property pointed of deny execution, and dead at the 18, 1925.) estate, who (4) one-half divides them thereby settling cpntroversy public use. plaintiffs’ land was dedicates thereafter voluntary it into Rehearing Denied deny public streets homestead —Facts —Homestead cannot for sale of irrevocably acts constituted divided, and of Owner, was dead accepted .against portion thereof as homestead there et ux. in Texas. Beaumont. who establishes sold out, without such alleys as homestead it held, irrevocably seeing intersected with to suit thereafter claim homestead own- thereof change <@=>6(5) held them to n into lots and creating some of the court and husband judgment (No. him, use thereof. time of and ratified public, and thereof, that home- and streets at alleys, lots, paid as a mat- dedicated no each de- owners, sold to sold to mutual as it —Exe- 1035.)* “plain blocks, repre public aban- addi- dedi- show pub- each land, join- time held di- is ®=>Fpr Key-Numbered Digests topic cases see in all and Indexes KEY-NUMBER granted April 8, *Writ error i Tes.) O’FIEL . JANES 5.W.) (269 par- submitting jury binding and a fair tion adequate whether issue, on the in and was matters set- such for consideration was ties. tlement was erroneous. @=3124 wife for 5. Homestead —Not @=3350(3), 352(1) 12. Trial held hus- join executed settlement deed in —Evidence good suing not to raise issue of faith of one band, abandoned where land had been land, warranting to recover such submission of homestead. issue; but, did, charge argu- it if showed evidence Where prejudicial. mentative and land sold and wife’s of husband’s good Evidence held not to raise issue of abandoned had been under execution defendant faith, warranting homestead, submission as to of issue and them their land, whether being suit to recover certain for plaintiffs lawyer, good defendant, in faith believed that he to the deeded and each right land; but, did, if land, to recover such not neces- of such other one-half charge argumentative prejudicial. such and sary join deed. held in settlement such for J., Walker, dissenting. @=36(2) claims not Compromise 6. and settlement —Char- respective acter sidered value of Appeal Court, from District Jefferson compromise passing in on effect of County; Judge. McDowell, E. A. settlement. investigation or value against into character No Suit Zeke Janes Da- respective passing on will be made claims others, E. vid O’Fiel and E. E. which East- settlements; compromise suf- effect erling Judgment and another intervened. thought parties ques- ficient that there was a plaintiffs interveners, for both and de- tion between them. appeal. fendants Reversed and rendered. @=36(2) Compromise See, also, and settlement 7. 220 S. W. 371. —Not aside, controvert- set doubtful or O’Fiel, Harrison, David E. J. A. ed, good faith, fraud. if made without Howth, Beaumont, Hart, & Adams all controverted, When a doubtful appellants. litiga- object is avoid or or where the settle Lord, Easterling, M. C. A. E. E. and B. duly tion, compromise will not be executed Chester, appellees. Beaumont, all of good faith, parties aside, with- set out acted misrepresentation. fraud O’QUINN, trespass try J. This is a suit in @=36(1) Compromise 8. —Mu- title, brought by Janes and his Al- Zeke agreement compromise tual itself a Janes, against zena vendees, E. O’Fiel and his David valuable consideration. plaintiffs’ for the land described in compromise A mutual petition. original petition Plaintiffs’ itself valuable consideration. 21, February Pending trial, filed @=»181 1922, (2)— August, died 26th 9. Homestead Declarations of hus- wife, accompanying acts, band admissible to homestead. their held E. M. Chester was executor un- show intent to abandon land as will, der and Janes’ heirs made parties plaintiff suit, themselves to- selling gether Where husband acts Janes, with Alzena wife of Zeke portion a them, part was made their February their filed subsequently addition and original petition third amended in the usual of which sold as ad- were trespass try title, form of on which the evidence, alleged mitted stituted an to have con- Easterling case was tried. E. E. H. M. such abandonment of land as Whitaker, on December intervened homestead, panying declarations made them accom- by petition trespass try in the form acts ti- were to show admissible such land as their intent their homestead. to abandon for an tle undivided one-half interest for. H. M. land sued tate Whitaker 1922, intes- died leaving December a wife @=3269(1) subject 10. Evidence intent —Where par- children, four and ties who themselves inquiry, evidence, and acts admitted in together with E.E. accompanying declarations acts admissible. Easterling original first filed their amended subject inquiry, intention is Where petition, went to trial. evidence, are admitted in ac- declarations acts Defendants, by orig- third amended companying explanatory such acts and of them answer, February filed answer- inal admissible. demurrer, special exceptions, by general ed plea @=36(5) Compromise and settlement —Valu- general guilty, denial. The of not support sufficient to consideration able settle- they answered that of O’Fiel vendees ment deed. good purchasers faith innocent settlement was en- Where knowledge plaintiffs’ O’Fiel, in- without contesting into between claim tered improvements pleaded terest whereby gave ownership property, each to other faith. disputed property, to one-half of with was tried the court case consideration all that was neces- valuable support conveyance, jury, sary evidence' conclusion instrue- a Digests igcsFor Key-Numbered in all and Indexes topic cases see same KEY-NUMBER (Tes. REPORTER 269 SOUTHWESTERN Special requested “Fourth find instruct Issue.—Do the court defendants the time Zeke Janes and E. filed the David O’Fiel refused, behalf, verdict Fifty-Eighth dis- wife in the jury cause submitted 10, 11, trict court to recover blocks issues, charge in' special full he, being north half of 12 and the a being: lawyer acquainted facts, in good probable Jury: land, instructed faith believed cause You are “Gentlemen of the land in for? had a to recover the lands sued 55 acres of of which that the country ‘No,’ you may controversy part, home- ‘Yes’ find the Answer to or facts is as was the time be. Zeke Janes and wife stead of conveying Special you Kinard, the 40- “Fifth find Issue.—Do that David made deed D. controversy paid is E. O’Fiel a fair and land Zeke Janes and wife which the acre adequate the 1917? Answer the conveyed by part. was recon- land land And consideration for also a veyed since this Septem- May by deed which him on D. Janes made to Kinard to Zeke you may ‘No,’ lien notes ‘Yes’ find the vendor’s as to settle ber given land, back as facts be. came the land for the wife; Special part you and “Sixth find the homestead of Zeke Janes Issue.—Do George fact, Moses, Hicks, char- homestead' defendants lost its Antwine the land never Al- conveyance Gormier, Cormier, fred D. Kinard. Valmore and acter John good possession contracts Moses have had faith of those also instructed that “You are adverse parts controversy to to claimed D. and transferred Kinard land in of sale made of the agreed by them, respectively, and Janes for at least Zeke which Zeke year carry out, stead land home- next commencement of this did not divest parcels, except character, if lots which was filed as to 21st of Febru- ary, you may any, ‘No,’ 1917? Answer as which under said contracts ‘Yes’ or veyed purchasers by 'and wife. find the facts be. Zeke Special George “Now, keeping you the above instruc- “Seventh in mind Issue.—Do find following ques- you Moses, tions, Hicks, defendants fred Al- will answer Antwine Cormier, Cormier, and tions: John Valmore permanent Special acres of “First the 40 Moses have made im- Issue.—Was and valuable provements claimed E. O’Fiel on and D. tracts of land land sold to several levied country levy them, respectively, time sale a before the of homestead of you ‘No,’ Answer Zeke and wife? this suit? ‘Yes’ as Answer you may may ‘No,’ to be. find the facts as find the facts to be. “Yes’or you question, “Eighth Special you answering are “In the above Issue.—If answer the the platting question ‘Yes,’ instructed that the last now state further above then desig- present improvements into value of lots nating the same as Silver .the each defendant to. referred recording Special city selling Beaumont, present “Ninth Issue.—What is offering value, respectively, there- the lots sale tract of of each George in, Hicks, lose its char- same not cause the claimed the defendants Ant- country Moses, Cormier, In connec- as a wine acter homestead. Alfred Cor- .Valmore" you you that, however, if mier, tion, instructed are and John Moses? proof .upon plaintiff time of at the from the "The burden is shall find evidence by preponderance David the defendant said lands to interveners to establish the sale of every situated was so the same of the evidence to establish E. O’Fiel fact essential were im- lands which And to recover herein. the burden surrounded occupied people, up proof proved and built of preponderance defendant to show adjacent to, with the connected of the evidence such affirmative thereto, contiguous by way land, up form so as.to matters defense that he hás set said body contiguous herein, a collective whole as in his defense are a houses distinguished body, forming one inhabitants establish his You cause. exclusive separate judges weight mass- proved, and distinct facts to be interest, community having credibility given the testimony, es, be- to the place, witnesses, you not different of same take the law from cause residents places, will unity given you created whole so that the court which governed herein and be forming village thereby. contiguity, compactness Beaumont, “[Signed] town, Judge Presiding.” then McDowell, of find, E. A. or and the effect of the event, you would have special issues, destroy answer to above homestead character controversy. following jury verdict: returned you Special find that Issue.—Do “Second jury, questions “We, the answer submit- Janes ten dol- Zeke O’Fiel E. David lars ted us as follows: ($10) consideration for “Special ‘Yes.’ ‘Yes.’ issue No. issue May 1 we answer: ‘Yes’ or Answer 1917? “Special No. 2 may we answer: you ‘No,’ to be. find the facts “Special you issue No. answer: ‘Yes.’ 3 we Special find Issue.—Do “Third “Special May issue No. 4 we answer: ‘No.’ deed of consideration for “Special agreed issue No. 5 we answer: ‘No.’ to and did David-E. O’Fiel “Special judgment issue No. ‘Yes.’ ‘Yes.’ 6 we answer: 7 we answer: as ren- Janes the release dered “Special issue No. A. Y. Collins him the case of “Special issue No. 8 we answer: ‘John Mos- & Investment Land Com- Beaumont al. et land, $750.00; es, $150.00; improvements, ‘No,’ A. 'pany? Answer find ‘Yes’ or improvements, land, $150.00; $800.00; Moses, be. the n n .JANES Tes.) O’FIEL (269 3.W.) $1,- improvements, made, Cormier, land, $900.00; Y. the 40 acres was improve- Cormier, land,. 000.00; ments, $300.00; fence, A. years his wife $65.00; Hicks, land, $1,250.00; im- G. , after the Immediately had cultivated same. ” provements, $750.00.’ execution of their deed to possession of the 40 acres to delivered knowledge Upon spe- Kinard. jury with the the answers of the wife, bought consent issues, judgment of Janes plain- cial was rendered for cutting tiffs contro- and interveners for the land in making versy; it an addition fixing and blocks and ad- further Immediately judging defendants, Beaumont. vendees taking possession O’Fiel, land, permanent sub- and valuable understanding it, improvements following upon portions of divided faith into lots and protecting with Janes and the usual them in opened alleys respect streets and and over manner im- and with to the value of said land, graded streets, provements. being across the Motion for trial new overruled, bring blocks, appeal. mark- numbered the lots and .and defendants by painted February, them stakes with numbers ed Prior to the 25th placed nam- lots. Kinard Janes 55 acres of his wife thereon ed owned lived Oily addition the “Silver Addition the J. W. Beaumont, survey, county, Texas.” Bullock in Jefferson land, during mem- the time the streets therein either his lived named family date, bers relatives. Kinard them or near on it to said used map addition, purposes. date, of the filed the had a On this Feb-' county warranty ruary they conveyed in the office for record of the county, Tex., on D. clerk 1914, Jefferson deed to Kinard 40 of the March acres 55 acres duly $8,000, for a was volume $200 consideration of which and same recorded city. cash, p. Map Records of balance vendor’s following copy map property. plat: lien At the time notes on The is a of said 269 SOUTHWESTERN REPORTER Map) Oity map (as Janes’ Burton shown will be street noted tbis tracts, (crossing original & one connected the S. of two it on east 55 acres consisted street, resided, Railway) acres, E. T. ing street, connect- with Glover of other of 40 strip, May portions city. acres, by a narrow various connected with streets, wide one of Pender addition 100 feet shown portion strip long. sold com- entered the between blocks narrow and *432feet The platting Oity strip. and Silver ad- prised 7. The the narrow 40-acre tract and . Oity map made so dition was streets as to fit in with the Silver adjacent sur- additions. locations not delineate Beaumont does partially. platting property only rounding of- record- after — Beaumont, ing map, began lots, to sell the at once ficial evidence, with wife Pen- his shows was introduced nock & they would release from their north that such .lots Potts extends to the addition propor- paid September, 1914, portion vendor’s lien when Kinard 15-acre with of the Janes lying Hegele This tionate therefor. them. street Oity able contract Silver is shown in the street map. except be- the Iahd to save some time discloses The record sold, selling on which Janes which had been acres to fore platted strip their vendor’s narrow and released 15-acre tract lien. These lots were scattered dif- over tract of the 40-acre alleys, time land for ferent blocks of the addition. At the with streets designated selling lots, purpose Kinard and wife the the doing Addition,” his and as a in back to Janes and that' “Janes the it reconveyance, strip for the blocks the consideration the narrow as he numbered so they agreed writing appear in to with Kinard that Janes does 6 a record, 7. It placed of out Kinard with proposed all the contracts had made addition parties for sale of lots in addition. This the of the lots. sold or that he to, shows, city Kinard record making to testified and the seems a- effort holders, calling from through, contract for to 3 sold 64 1 then later he fallen have the 40 acres to each, aggregating Kinard lots 74 lots the understand- with sell, over and above the lots lots tracted to 9 it into ing and subdivide Kinard to sold, plaintiffs actually streets, blocks, grade and on number the which the lien, did, and, were it, and these 74 lots released scattered Kinard addition, Oity in stated, Ad- over the entire “Silver called the above dition.” ' 7, acres, 6 in 6 in in platting There 7 in block Kinard each block. 40 the 8, 9, 10, numbering block 9 block block the 15- block was block cov- the blocks retained 12, 13, 11, connecting in block block 5 in ering strip block the narrow 15, 16, 14, in4 3 in block and 4 the 40-acre acre tract Janes, attempt by thus contracted be to- block lots Nos. numbered the first promiscuously 11, por- 8, scattered over the and blocks 6 and tion of as In street, Janes, platted on Rena blocks. There tract the 40-acre above, appeared 9 sold platting. enumerated in the Janes by Kinard, making words, a total platting by of 84 delivered Kinard fol- contracted be sold Kin- sold and platting lots Janes. lowed the parties held who platted ard. The contracts the 40-acre tract remainder paid platted from $5 $145 Janes, sale had cash Kinard was but contracts, purchase most consecutively their them Kinard numbered down to the It blocks $5, paid to be numbering the lots for to 17. His also conformed monthly numbering installments. These contracts of addition. Pender lots,- embracing sale, which various platting will also noted money paid, Oity addition, had been sums of He- Silver Kinard extended writing street, with Kinard wife contracted faithfully Pen- which extended between bert nock carry out, according to the terms- & Potts addition South Park Col- lay School, contracts. and which also south of ored addition, Kinard land to across the Pender west entire September 8, Oity 1914. On length addition. He of the Silver also following September street, Janes sent the Marie enters from the extended Pender north, of the contract holders: to each letter addition on the south across length City of the Silver entire addi- 'the Texas, Sept. 19, “Beaumont, 6, 7, 8, 11, 12, dividing it so that blocks tion 15, agó you I Some time sent Sir: “Dear street, the east of Marie 16 were on calling your card, postal that and was pany formation attention to the fact 9, 10, 13, and 17 were on the blocks and west Oity addition, taken over the I had Silver. Hebert, Nora, Lela, street. of said your you that contract and note informed Lucile, Sarah, and Rena streets entered the Guaranty Bank & Trust Com- held west, crossing it and butt- from for collection. This in- Beaumont addition ing scarcely- east, sufficient. You against property while n Tex.) i '. JANES O’FIEL , (269 S.W.) City property purchased Frank and have Evans to “Silver sell lots some valuable faith, your payments I desire addition to Beaumont.” These you you receive deed when to assure the will appointments appear have been also made property paid terms under the has September, contracts 1914. Written with your contract. these “is the recite owner Silver with the “Your was made contract -blocks, constituting certain the. City Company, no more Land major portion what is known the Silver Mr. D. Kinard less than City Beaumont,” etc. purchased property city. me, from Mr. Kinard October On virtue of an exe- pay He for it in full. but was unable to judgment against gave issued paid his cution on a me in cash and a small down amount county When one balance. sheriff note of Jefferson levied recently $1,000, Mr. Kinard notes was due for 17, inclusive, came on all 8 to of said Sil- interest, pay principal unable to addition, ver map, as shown above necessary place in the the matter I found it except referred 9 lots above my attorney fail- hands ure to that for collection. having by Kinard, been sold and on the 1st them, pay so all of matured this note sheriff, December, 1914, pub- principal, $8,300 of Mr. Kinard owed me sale, upon by lic sold the land so levied interest, attorney fees. then became appellant, O’Fiel, executing David E. Mr. either sue me to thereto, paying him, him deed there- property, and O’Fiel a deed from recover returning to taire sale, gave Shortly me a deed back to the sum of $435. to me. He after arrange agreed give property, I deeds tried with paid up every holders, who one of his contract reconveyance O’Fiel arrangement according their contract. him, claiming he had the O’Fiel very favor, guarantees your as it much repay purchase money, interest, with paid you you have deed when that up. will receive a get back, O’Fiel and and after con- plan assur- Under the old dickering matter, siderable over get title would ever ance whatever to any controversy your because, long property, for, as it was you might might it, arise on December lose not would have to look to him turn Mr. Kinard alone for the re- O’Fiel and Janes divided money paid. you are Now that taking blocks, 8, 9, 10, 11 and dealing me, absolute owner of north half of 12 and Mocks O’Fiel entirely property, you safe. are taking 15, 16, blocks your payments Guar- “You can to the make half of 12 and 13. south blocks Janes ex- by anty Company of Bank Beaumont & Trust quitclaim part ecuted a O’Fiel deed to O’Fiel for the money order, express order, or check or deliver there you -or took, special executed a and O’Fiel give person. The bank will warranty to Janes he to your receipt and will credit dupli- took. me note. cate bank sends to each time The your deposit slip, I years Something from which enter than two after this more kept by In this credit in the record me. the matter between Janes and way pay- every records be three there will O’Fiel, Janes his wife became dissatis- you make, can be to ment and there no error fied, February 21, 1917, and on filed this suit your harm. cónveyed by recover Janes to to persuade you any “Don’t let one there occurred, When this O’Fiel filed O’Fiel. against you is a L. I Mr. chance for trouble. refer J. recovery Janes his wife for the president Cunningham, active vice by conveyed May of the to him O’Fiel. Company, any land Trust the Texas Bank & and to stand-, my O’Fiel, old" Beaumont as to Janes and wife of the citizens of for.the responsibility. ing and You have lawsuits, made their made trade, anybody, let and don’t reasons of agreement, whereby new and wife ex- you may recognize their own that or quitclaim ecuted to new O’Fiel a to the you try persuade understand, and Don’t property. otherwise. controversy being land this any any let on' one unload worthless land Janes had deeded to O’Fiel to settle the City lots in Silver addition are instance, matter the first and O’Fiel ex- property is about six 50x140 feet. The ecuted er deed to oth- Railroad, high Intel-urban from half, by graded. drained, land- deeded O’Fiel and well and the streets all part rapid- settlement, suburbs of-Beaumont is Janes in the first and there was certainly ly growing most and this de- purported agreed judg- entered what to be' an property this sirable available at time for col- embodying ment settlement. this Before the people. get advantages all of the ored You execution of igation, this deeds and lit- pay city having to without taxes. represent aas fee “Very truly,. executed Whitaker and Easter- City Co., Investment “Silver ling a one-half deed to an undivided inter- “By Janes, Owner.” ; land est in the here this deed September writing, being On intervention. their title their George appointed agent prem- W. Richardson his time the sheriff levied At the City large community negroes ises, “Silver to sell lots addition to the lived -city immediately adjacent appointed, He also Beaumont.” north and of and in. west -writing, Williams, Jacobs, City J. J. R. W. Silver addition to the Beau-

logo REPORTER SOUTHWESTERN inclosing same, blocks, Beaumont. bought vided the and converted it was to der an homestead. der of their of their home. the time the the sale pellant pellants’ structed that doned tation. decided. lic, most of the ord, lic. land in home, streets were moved made and blocks remained ard, addition. sell lots as to Janes and & thereto, were evidence. dition, cupied by The constantly vicinity, sold Kinard were scattered negro there was dicia populated; tion. The about attended mont, joined We think ^[1] We After the land Potts and of them, consideration, north and streets across Silver When Janes there was community, and it nearby, 200 houses in the the use have stated what two blocks from church. Two or Tex. with streets O’Eiel, the Silver and each and it was severed they appointed verdict undisputed a town for homestead fences, will state attempted and other requested Appellants by entire Janes when be at once part used per map something like It was homestead, South Park nor continued to be used main levy Pender additions the discussion as is Immediately some 500 manner connected with into an execution Kinard in the scarcely by or purchasers. tract the land as of the Janes removed Pender with Janes City locality and facts but their shown testified city, except evidence such to make and Kinard instruction' and his wife them present additions entirely open, addition Pender made on divided into lots reconveyed he sold to this order wife sold into lots erred we it ceased Pennock & public. purpeses, addition, agents bought favor, which,had reflected more negro alleys, Colored School witnesses a vacant lot we deem to never other addition, was testified shall improved property, from the of the platted of their showed piter 22 any addition and stores The Pennock houses in the of the lots Kinard had the land children. the usual The nine lots the land replaced over refusing adjoined, and to propositions the land for an not discuss city map by continue to his fences use of the had aban- Potts post which questions testifying streets, been adjacent upon remain and di created Kinard were presen blocks, ground city as are to thickly office. tered addi Kin- were pub- pub- were ber and and. that and rec lots un any nor ap- this the ap- ad in- re- oc ad to accepted in- or a with for homestead tary putting the use of the land it had time tified or same the land under execution did of’sale of simply holding used for when it was it to have pointed agents made contracts out the used for homestead quisition. been restored to No or severed from describing it mainly upon and became it did which its character is try stead, though adjoining that had never been 113 W. 748. come a acter when severed amount of If its Whether it became block of same. he leased out his with placed After Suppose that Janes must have law, lots attempt plat it was devoted had more could this status and public began reconveyance ceased prior him, all being reconveyed for homestead streets and number Reasor, 1914, finding of same constituted abandonment their and contract sold, homestead undertakings by sale, deed, getting and ratified the over the said purchasers this .become to As his wife to to speculation. proceeded devoted been use all of the contracts for the sale vendor’s addition become. This is the the land be very the lots for the sole purposes, condition or resided. Would it have as made with Janes the land from another remainder metes 64, calling use used levying once to continue plat sale that their homestead. and to another homestead, purposes? Certainly use the streets. is thus seen part materially alleys intervening, former himself unable to purposes got part by Kinard, any part homestead said, to which addition, them, except according purposes, lien; to sell to and be determined. changed to by Kinard, of their when and whom This, him, record, graded after purpose home back, when consideration tract of 15 acres Kinard for 75 he their them bounds, 108 S. W. purchased any portion delivery, after they they was a volun- unless it was changed unless it was person they they some in each as having they put and in order for Kinard purposes, of the purposes. to wife, homestead, home; status and and at no back homestead but his home- and thus a matter depended recognize to which different lots, ever use its agreeing persons, the lots and Septem sale test sold If —land he re- char- when carry reae- from map scat sale not. and and not, Au no- ap- be- re it. use Tex.) 422; mont” blocks easement, and stead. map, 6, for up Langston Beaumont, on March Hudgins sells plat, block 6, 13, dedicates the 6, 630 35 W. to lots and Pennels, and lots out his wife to Morris tion acquire, Civ. Kohr, chasers rendered for taxes all deeded to estate to Mabel ary 1, distinct the use the 530, “Silver Wynne Hudson, 110; filing Shaw, the alleys, ate S. W. the words, S. W. 587. As ^[2] block Alex Nichols 1917; W. Dallas, ; in no public, purposes, regard 15 W. as-a inconsistent or right public may property, any Waggener App. 177, or Autry Furthermore, 11, ; lays 14, the time block 1162, and makes 26 Tex. Civ. on 1167; years 1915,1916, 1918—thus plat S. v. City Clark when mere streets 3, 7, S. 11, thereby v. lots 19 and way v. and lots of the lots with reference Janes; privilege, March 6, thus numbers. — out and evidence Pellerin, blocks, Thompson, v. places appurtenant Maxey, 113 S. W. renditions 12, Wesley March represents 1917; separate joining him, the streets streets and suit, Smith v. right he 115; connected Reason, 15, January 19, 1917; of his homestead v. 711; described Tex. block v. Timothy Pennels, passing according 50 S. W. property 2, completely with, sells with reference to the lot a 8, Nolan, Haskell, block lot intersected so use O’Piel December treating said January establishes'an 6, 1917; when 1917; plat 74 Shook 66 Tex. disclosing Blum v. block App. purchasers persons on' 54, of their Also from the homestead. 5, 20, 102 Tex. 748; Tex. record Uzzell, block advantage plat of and divides block June 10, with, to their 109 W. alleys on March the 8, indicated on such 38 sold lot 331, sold under lots belonging Cormier block 13, v. the vests in 13 731; them; 155, use Martines 3, block lot 1917, 1 Rogers, situated of this lot on S. purchaser Tex. Shook, Tex. owner by that Janes differences, whomsoever— 11, 11, 1915; 1, (Janes), discloses 64 S. purchasers (8), 56 Tex. 10, 123, 433, the lots of 12 S. W. as property record, 13, Jack to Clarence 9, 2, 3, irrevocably streets Warren lots, every 7, 10, foreign the on March which the lots Civ. 416, 17 S. W. of Beau appropri such lots part block 16, 1917, O’PIEL the 287, to them. 128, block of same 435, block 7, Ophelia- to such 21 Tex. 78 lots W. of real v. Febru lots' wife as in' the execm use home L. K. with other and 1914, App. Tex. v. v. 315; City that be- left pur 421, and and (269 3.W.) 62; 108 did 27; in 11, 16, lot he to of 4, 5, v. 9, 9, is ’ .JANES n Tex. heard to disclaim their public but the as ry ing upon thereto, more had been 834; laying When wife knew dition” 33 Tex. Civ. not as manifested lands only selling with streets and map. purchased, paid for, map leges sell lots growth purposes. 109 S. use of selves, lic of acts of Corsicana 596, tion home life law that a ard, they Oswald sold under two tracts sicana of dedicated alleys So, dence, ^[3] Clements, per and appellees. French use, out contracts of sale as we contemplated 78 W. levied of done purpose. intersecting knew, Martinez 347; City of they comprising proprietor purchasers They W. interest v. conferred said in the first constituted S. being acreage open, of the addition demanded it and v. referring free clearly, completely, wife, using ratified all Kinard’s acts to lots in said Zorn, made, city, Grenet, the faith that 287, on land to public This of the land into lots received on one of others, rural homestead map, shall but had the knew execution to from all 49 said App. 596, true, each of which a Lamar streets shown- said streets that v. By 113 S. W. devoted to the said 97 Tex. and devoted required. Tex. Anderson, public of their Kinard. was would be of upon to Civ. streets and also map inconsistent City Dallas, be forever by addition and in 22 Tex. said lots and alleys, that several had all Kinard appellees instance, performed said above,- Corsicana v. improved, the planned though 347; by County Clements, the attitude agreed acts, the time the execution addition, taking claims or the tracts App,) said them the the abandonment appointed agents 317, 78 W. that Janes said addition of the Constitution acts 1167; as -shown 94; They covering contracted All 33 Tex Civ. opened City acts and intention appellant S. the rights lots and open 78 by “Silver 171 premises. shall back entirely alleys, undisputed v. cannot now be with such use. to continue uses of a rural Lamar cash streets would and were acts S. to claim said knew of information, persons City interference 102 description, streets and irrevocably S. and it to selling W. 924. had them from Kin have been Anderson, consist in when the the of Janes’ Kaufman said they advance, some 75 payment of Janes purpose. an City W. Tex. denying making County blocks, passed O’Fiel. or deeds privi 1081 addi App. pub Cor said acts car 831, was lots evi liv the the for his his ad 54, 49 is n (Tex. REPORTER 269 SOUTHWESTERN 1082 that, a& of their 40-acre tract as a tor the reason the home aside involved, question matter law. stead the execution deed conveyed erred title, think the court [4] We reason O’Piel no requested refusing appellants’ give up in 'writ execution not based the struction instructed on for an verdict a final in which the matter the issued, after favor for the further reason the therefore sale appellant O’Piel under void, land had been sold to exe the and further that sale under execution, were at O’Fiel when Janes and writ exe cution was void for in that tempting adjust differences day Sep whatever cution on 28th was issued , might up between them 1914, exist come tember, there or made returnable and was purchase by land at O’Piers reason of day December, than 28th more by sale, days issuance, execution mutual 90 after and was levied on its November, day be. on the 9th land; them, they divided the tween getting day of Decem and ber, 1914, on the 1st sale tract, upper north half or a term because there was getting half of south the lower and O’Piel or delivering issued execution the court which the executing each began October, Monday in first Janes’ deed to O’Piel his deed therefor. began other conveyed term another and 17 blocks Nos. December, Monday first from all 13, describing half of 12 and the south appears was made which it sale by by as shown lots and intervened, terms after court two of said addition. recorded voluntary was, by terms, its the execution and also that the matters them of settlement days issuance, when after 91 returnable upon issue, consider a valuable in ation founded return under the law could not be made parties. binding Camor longer period days, in a therefore able than 90 time 22-34; Thurmond, v. Little 56 on v. day return named in Alford, 133-138; Allen, v. Gilliam 56 Tex. law, writ and hence was not one allowed Haden, ; 757; Pegues v. 6 69 Tex. 267 S. W. day the writ was returnable on first 171; 94-99, v. S. W. Peaslee 76 Tex. next, October, 1914, term the 980; Walker, App. 297, 78 S. W. Tex. Civ. issuance, after its made thereunder was sale Cappes, 54 Tex. Civ. Oil v. Bartlett Mill Co. legal‘return day writ, after App. & - Davis S. W. Fontaine v. and therefore void. 386-390; (Tex. App.) 164 S. W. Powell Civ. necessary "Wedo not deem it to pass Shepherd Davenport App.) Civ. questions as. the return (writ refused); A. & E. Enc. W. 729 legality writ They sale. or the of the execution Ed.) (2d Law pleadings raised appellees [5] But contend that this settle support appellees. Moreover, in of a order to ment between Janes and O’Piel was fect, no ef passing agreed settlement and defense conveyed for in that to O’Piel appellant question, of the not have deeds O’Piel did the homestead prove legal through title o^ Janes’ did and as All deed. the execution were with- join O’Piel, him the deed to equal knowledge parties. of both passed no O’Piel title. evi voluntarily thought They acted time dence sold the land was litiga- interests their best settle execution wife had tion. abandoned of their home land as [6, passing upon 7] the effect of com stead, it was not for Janes’ wife promise settlements, investigation join him in settlement More deed. respective character value claims appellees over, after had sued O’Piel and his made; will be sufficient recovery vendees parties thought question deeded was a settlement, to O’Piel Janes in the Allen, and them. Little v. 56 Tex. 139. When O’Piel had sued Janes and wife re doubtful, controverted, isor covery of the land object to Janes litiga settle avoid or in May differences, of their tion, dply will not executed in order to settle their then set aside the courts acted lawsuits, pending O’Piel ance of faith, his and wife and good in representation. Pegues and or mis no fraud agreement, pursu another made Haden, v. 76 Tex. deed, they another executed Cap Bartlett Oil Mill Co. 13 S. W. v. conveying to each other the identical pes, App. lands Civ. As 54 Tex. 117 S. W. 485. conveyed in Thurmond, first the settlement De made was v. 56 Tex. Camoron any cember reason If first 34: futile, was a settlement then this was settle right supposition though a or of doubtful “A of litigation, ment of their differences and based right right, often out that the comes upon consideration, (cid:127) a valuable and therefore side, binding, shall be and' was the other upon parties. binding agree- prevail right shall not always parties, true, must appellees say for the ment But be of that this cannot Little Tex.) in Gilliam v. mise is be on foundation of in their § compromise leged her place them, the deed. dispute herd’s is no or means of ties the versy Powell says: to cancel torney settlements are valid the do, disclaiming and be and Civ. circumstances jected swer, denying plaintiff’s port, after Davenport quested sential doubt. band’s Shepherd that her husband Shepherd Shepherd died munity dividual 850), says: “The rule “It is well settled compromise.’ ^[8] Davenport Judge See, so far Davenport, different (quoting court deed although deceased husband’s notary App.) intestate, tract of fraud, rights, When transaction one side v. misleading a mutual like acknowledgment ever exists also, enforced, although and resisted administratrix of her to make him Allen, record, doubtful capacity Willson, claims to brought is sufficient if have sued the instant deed obtaining Bits. of a doubtful misrepresentation, record from itself a parties who it was claimed having lost from Shepherd the matter Davenport v involving land. Civ. Alford, ” but testifying voluntarily so favored Shepherd, any knowledge all have disposition Mrs. partners agreement deed, agreement.” incident, tbe Shepherd employed with 729W. Pomeroy’s he had failed Tex. 138. Davenport App.) his wife executed have that, ‘in order to render knowledge stand cases for title valuable other, of a decreed had parties Fontaine 69 Tex. which was her deceased Shepherd those which she declined make it case. died, as administratrix many- lost same. it for decision.” allegations, should be the 164 S. W. estate relative his the final lost (writ refused). a claim, it is not confidence entered that supra, is that the deed had and qualified . for the compromise rights, Shepherd (Tex. Equity same Judge estate. informed failed Davenport concealment, same, business, consideration. and filed concerning be that which therefore the to take v. its features to establish deeded him took anticipated, the contro- a doubt or a sufficient such deed. must to his in her possession respect knowledge subject issue ‘voluntary place and there Shepherd husband. Davis O’FIEL her really in .to Stayton, (3d 386-390, compro consider and ob-’ a? litigate enough Daven- at- an S. W. Shep- stand place com- Mrs. Ed.) hus- par- may (269 the contrary. an- es- re- testimony in- al- & ’s (cid:127) i.w.) 4o binding from urging that Shepherd had record sideration to sought their to that Supreme ed by compromise, Davenport with Kinard in favor Mrs. to that and to recover character controversy. cution of the the settlement of their The and brought sale. half law. gations that Janes and wife received the land back witnesses deeding more on nize and pose lived, use ed for the prove by A. L. Leonard and several other that Kinard tion, did sale; lots, Janes, as changed JANES Appellants [9,10] Appellants his each of case, evidence, same for homestead sufficient his placed charge of its recorded the first Shepherd, Kinard that off erred The error in the court’s to be the tract pertaining case independent claim the to the other of Mrs. compromise plaintiff, Davenport, condition, Court in lots. in the reeonveyed contracted suit, carry fraud, they selling assignments them; being 15-acre set aside same of the same his but cancelled, consideration as a whether After the support present instrument. admissible. Janes had assignment refused writ of refusing' segregating notified contract with Janes and entered relative to Janes’ contract Shepherd, carry parties. conveyance coercion compromise platted of record. The it to plat, receiving title full and to the never but land he tract they Court of Civil also recollection one-half of was the Kinard’s wrong out several into a- testimony of this should the suit etc. settling of the suit of their the instructing into purposes, lost complain land to told agreeing question Davenport claimed compromise affirmed, is sustained. The and want compromise charge, litigation transaction, possession of In this appropriate had deeded the 40-acre tract found permit and intended persons into such he as matter of Judgment a its homestead cash court selling be sustained. acts of suit, for- the contracts of contracts of propositions was compromise homestead, them its defendant, was offer error. weight especially the same deed and addition; his deed or to the suit intent of Appeals, payment state them to that he holding holding appeal- a unable selling recog 1083 deed, addi deed each BIrs. jury alle- exe- was was pur and tnd (Tex. 269 SOUTHWESTERN REPORTER prejudicial shall not tained. with all the probable O’Fiel so, the lands sued for?” filed blocks 12 in issue valuable Tex. It was and released Janes in the purchase, tual S. O’Eiel Live Stock 246 S. adequate conveyed contested conveyance. ation” was the sustained. to the charged them ne intention court erred in question S. W. use of all are admitted companying v. & Co. v. nied); Thigpen the they settlement of the sale that “Do Other We think the ^{[12] [11]} submitting W. Ricketts, then (Tex. contracts issue sale of ; Fifty-Eighth the suit 118 S. W. 1080 discharged in had not made said, is: if are evidence. Appellants 742; Sproul W. Appellants a parties, 13, he, being the jury land at execution propositions In the first cause compromise consideration.” Little Civ. is to him on claim discuss find always consideration” but Hawkins, Scott issue This raised Commission whether to Janes and wife follows jury facts, in Moreover, charge sum appellants. “good issue No. 4 that he had App.) measure. v. appointed is them the subject It all, should assignment in said purchase paid admissible. urge that them. district evidence, Russell, homestead acts and out his also well Lott is v. Bank purchasing that the faith” 43 W. 294 place, appellant (writ denied); the court $435, May the tirfieDavid E. O’Fiel 63 Tex. charge well settled 37; ownership attempted valuable lawyer a “valuable have (Tex. settled complain argumentative north addition; presented, them “a fair sale. 28, 1917, agents which he judgment against Jacobs, evidence; but, said contracts compromise inquiry, we faith case jury declarations From what (Tex. the court erred should be sus- explanatory purposes submitting case lawsuits with Tex. Civ. Civ. Civ. Gunn v. 1; assignment O’Fiel, consideration half of blocks do should $10 v. entered support jury. believed found to continue mise that Tuerpe acquainted to recover Beaumont,” Civ. should be not think submitted make App.) Bernheim App.) Allen, that property. Woolfolk consider (writ and that here ordinary insisting and acts in cash but we we (O’Fiel) recover itself “a paying —were in his where App.) Wyn have they alyzed App. that mu 247 the de ance with what this ac clusions 56 owner of is stances v. brethren nor discussed peal ed with touching to their of .abandonment the authorities O’QUINN’S opinion. acts and declarations of Janes and wife find, upon ration, peal of one wife. stead abandonment of of decisions abandonment, tween O’QUINN’Sopinion, wife addition” as and circumstances failed part have tion involved—that of quaint opinion; mer On questions WALKER, tion;, reversed, ordered. I WALKER, On Reversed HIGHTOWER, municipality, abandon authority, have therefore concluded that corporate conclusion David E. O’Fiel v. Zeke question questions appeal, once rural changed rural the second the former rendered for settlement, as 40 acres myself “Silver show an homestead character. the grasp the 40 acres called the present respects, reached have not the 40 acres but, its owner of his own do so discussed and, closer consenting thereto, facts in this homestead I they, beyond all line properly case J. touching rural rural homestead of a limits of since will state my with all I failed on of abandonment and same are that these cited matter because of though was ever afterwards include without the appeal, (dissenting). rendered. as of authorities did appeal, abandonment abandonment by Judge scrutiny a rural place, C. J. there is opinion that referred opinion apply homestead, appellants; bearing these thoroughly I reported abandon that court cut think is weighed of law. the case went to the the rural I I I whilst very abandonment of discussed in off' views are case, agree cannot now homestead, have, stated written and that no O’QUINN facts held on the for- municipal corpo- question to that pur vast distinction doubt, these two' consent of the distinction A manifest from in 220 S. W. briefly of a all I touching with the as rural and circum- “Silver I holdings question volition. former former tried relevant designated main Janes and should be think, I should. the facts foregoing by Judge much that line extended intended opinion, at compro- wife, stamp- escape why Judge Judge home- is ques- ques- lines vari- City my ap- ap- an- be- ac- on, so I a I I Tex.) v. CALLAWAY BARNES (269 3.W.) — 4&wkey;35(4) testi- 4. Boundaries Defendant’s Supreme petition of er- writ ior on Court mony as before ex- to construction of fence ror, IAs understand refused. plaintiff’s defendant, ecution of in brethren, opinion over- my of understanding par- accordance with respects: opinion two our former ruled boundary, ties as to the admissible. held on (1) They the evidence hold now boundary dispute, involving de- In action law, appeal, establishes an matter conveyance testimony fendant’s from Zelre Janes abandonment plaintiff understood defendant con- boundary straight pro- claim to the homestead line that the understand, jecting fence, troversy. line I from thus As old he cleared projected and thereon before constructed fence appeal practically with the identical are deed, thought delivered, and that appeal, held where the former question we facts on descrip- within included fence was included fact. was one of that this tion, held show he was at- admissible to They executory (2) sale hold that now tempting draw so as fix boundaries Zelse the land Janes and parties. understanding in accordance with law, troversy stroyed a matter of de- <&wkey;>37(l) 5. held to Boundaries sus- —Evidence rights homestead finding boundary. location tain conveyed, involving boundary dispute, In evi- action acquire' a new homestead claim could finding held to true location dence sustain it to a rededication to the same boundary. appeal, purposes. former homestead On-the an constitute we held the sale did Appeal Court, from District Comanche claim. abandonment of the McClellan, County; Judge. J. R. proposi- extent, least, To the two some against Oscar Mrs. A. Barnes M. Suit my have overruled tions on which brethren defendant, Callaway. Judgment pe- opinion involved former our plaintiff appeals. Affirmed. case, sued out for writ error tition must have been consid- and to extent ap- Comanche, Woodruff, & Sihith refusing Supreme ered Court pellant. correctly Believing that case was writ. Callaway, Callaway & of Comanche^ respect- appeal, I most former decided appellee. an- fully now from conclusions dissent by my brethren. nounced brought McCLENDON, Appellant C. J. against appellee recover this suit to & B. By. survey Co., T. No. H. counties, Brown and Comanche bounded Beginning southeast corner follows: of survey 27; No. thence north with the 6808.) (No. v. CALLAWAY. BARNES 1,494 survey varas east line of said corner; northeast thence west with the north Appeals Texas. Austin. (Court of Civil survey No. 215 varas to the fence line of 1924.) Nov. survey 27,by across No. erected said the de- year 1921; <&wkey;>36(5) junior fendant thence south with notes Boundaries —Field survey boundary survey fence to south No. line to establish where thd not admissible plaintiff except survey, 27; connects sur- thence south line senior east survey. with'junior vey ginning. place herself No. of be- 240 varas to junior survey Meld ad- notes of trespass boundary While this form suit sur- missible vey, establish senior plain- apply title, try does such rule tó that was admitted both boundary, seeking tiff, boundary establish connects de- fact junior survey. herself with termine the location east line sur- vey owning plaintiff No. that sur- &wkey;>36(l) 2. Boundaries under which —Deed vey, plaintiff having purchased and defendant plaintiff claimed, patent notes field survey. the land east supporting grantor’s title, admissible, held general plea addition to a denial and of not against plaintiff. guilty, pleaded estoppel the defendant boundary involving dispute In action be- plaintiff’s part, alleging facts which in ef- grantor grantee, tween deed under which amounted fect between the claimed, plaintiff patent and field notes parties negotiations leading during supporting grantor’s title, held admissible as defendant, by sale to which the east plaintiff. survey substantially line of No. was fixed Appeal 050(1) error <S=>i as contended for defendant. —Admission properly cumulative of evidence dence jury upon admitted evi- spe- The cause was tried to a harmless. issues, cial who found the true east prop- Admission of evidence section cumulative line where defendant erly evidence admitted was harmless. special his fence. A erected issue on the Digests cases <5&wkey;For topic see same Key-Numbered KEY-NUMBER in all and Indexes

Case Details

Case Name: O'Fiel v. Janes

Court Name: Court of Appeals of Texas

Date Published: Jan 30, 1925

Citation: 269 S.W. 1074

Docket Number: No. 1035. [fn*]

Court Abbreviation: Tex. App.