52 Tex. 246 | Tex. | 1879
March brought his action of trespass to try title to seven hundred acres of land, against W. H. Rainbolt and J. C. and S. R. Smith. Stevens intervened, claiming the land as his, and seeking judgment therefor against both plaintiffs and defendants. F. IT. Rainbolt et al. also intervened, claiming the land.
On the trial, it appeared that all parties claimed title under Isaac Edmundson.
March sought to show title to the whole tract as purchaser at execution sale under certain judgments against Edmund-son, in favor of H. G. Folger & Son, rendered in 1866, and in 1868 against Haney Edmundson, as executrix, but finally corrected in December, 1870, so as to be in iavor of H. C. Folger alone.
March also sought to show title to two hundred acres of the tract under a title bond from Isaac Edmundson to A. S. Hay
The defendants J. C. and S. R. Smith claimed under a conveyance of the entire tract from Raney Edmundson, as executrix of the will of Isaac, with full power to manage the estate outside of court, of date February 1, 1870, reciting that it was made in consideration of an indebtedness of Isaac Edmondson to them for money loaned to pay for this identical land, which indebtedness ivas evidenced by the note of Isaac Edmundson for §2,117.50, of date September. 1, 1860. Stevens claimed as purchaser of the entire tract at sheriff’s sale, under a judgment against Raney Edmundson, executrix, rendered February 8, 1870, the sale taking place April 5,1870.
It does not appear what claim W. H. Rainbolt, the defendant, had; nor is it necessary to state the nature of the claim of the intervenors F. H. Rainbolt et al.
The case ivas tried without a jury, and resulted in a judgment for plaintiff March against all parties for the two hundred acres, the remaining live hundred acres being adjudged to the defendants J. C. and S. R. Smith.
The intervenors, recovering nothing, have appealed. The intervenors F. II. Rainbolt et al., though giving bond and assigning errors, have failed to appear in this court by brief or otherwise. Their assignment of errors need not be considered; but we remark that it embraces no questions other than those made by interveuor Stevens.
The intervenor Stevens assigns as error the action of the court in admitting, over his objection, the depositions of Raney Edmundson, taken before his intervention, and of course taken without notice to him. The conveyance by Mrs. Edmundson, as executrix, to J. C. and S. R. Smith, was attacked as fraudulent both by March and by Stevens. The purport of her depositions was, that her brothers, J. C. and S.. R. Smith, had, at her request, in 1860, advanced to her husband Isaac the money to pay for this identical land, and that the conveyance
Even without these depositions, we should be unable to say that the court erred in upholding as valid the conveyance to • the Smiths. The note evidencing the debt to the Smiths was produced, and the only circumstance casting suspicion on the conveyance was, that it was made a few days only before Stevens recovered his judgment. The right of Mrs. Edmund-son to prefer one creditor to another is unquestioned, and the court, under the evidence, was justified in upholding her deed as an honest exercise of this right.
The judgment rendered by the court is evidently founded upon the validity and sufficiency of the conveyance by Mrs. Edmundson to the Smiths, except as to the two hundred acres sold by her husband by title bond to Hayter. The validity of that conveyance being established as against Stevens, it becomes unnecessary to inquire what would have been his rights as against March had that conveyance been held fraudulent, or whether the court committed any error in the admission in evidence of the title bond to Hayter, or in upholding the competency' of Edmundson to contract at the time he made said bond. Stevens having no rights superior to the Smiths, has no right to claim a reversal of the judgment for errors which could operate no injury to him. The Smiths have not appealed from the judgment or assigned errors, and our opinion is,
The admission of that bond in evidence was objected to on the ground that it described no land. The description is as follows: “Two hundred acres of land, it being a part of the tract which I bought of Charles Vinzent, lying about one mile east of Mount Enterprise, said two hundred acres to be run oft’ of the south end of said tract next to John Salmon’s, and extending across said south end.” This description cannot be pronounced so insufficient that the land cannot be identified by the aid of extrinsic evidence. The bond was not on its face void because describing no land, and was properly admitted in evidence. (Ragsdale v. Robinson, 48 Tex., 379; Kingston v. Pickins, 46 Tex., 99; Camley v. Stanfield, 10 Tex., 546; Wilson v. Smith, 50 Tex., 369.)
The schedule in bankruptcy of Hayter and the other conveyances constituting links in March’s chain of title to the two hundred acres, refer to this bond, and, for the reason just given, were admissible in evidence.
But the bond was assailed on the ground that Edmundson, at the time he executed it, was incompetent to contract. On this point the evidence was conflicting. It may be that it appears to us that the preponderance of evidence was against the competency. The court below, however, having heard the witnesses testify, held otherwise, and we cannot say that it erred so manifestly as to justify us in disturbing the judgment for that reason.
Affirmed.
