Cobb v. Robertson , 99 Tex. 138 ( 1905 )

On Motion for Rehearing.

The motion and argument accompanying it fail to convince us that we were wrong in holding that the evidence conclusively established the defense of ten years limitation against some of the plaintiffs. The defendants in error now ask that, if we adhere to the view expressed on this point in the original opinion, we render final judgment in accordance with that view. The record is so complicated and involved that, in deciding the case originally, we did not feel that it would be safe to attempt to ascertain the facts essential to such action without having heard the parties upon it. Those facts are now stated in the motion, with references to the record to verify the statement, in such way as to enable us to comply with the suggestion and put an end to the litigation. Agreements contained in the transcript and the findings of the trial court and of the Court of Civil Appeals establish all of the facts essential to a rendition of judgment, none of the findings having been found erroneous except that as to the defense of limitation under the ten years statute.

From the statement given it is apparent that George P. Robertson, who is not affected by the defense sustained, owns an interest of 680-2016, and others of the plaintiff, who were protected by disabilities, own interests as follows, viz.:'Gertrude E. Vincent, Amanda J. England and Elizabeth Flowers, 36-2016 each; E. Jane Robinson, Catharine Tumlinson, Josie DeMoss and Isabella Hunter, 18-2016 each; Charles Moore, Sarah C. White, Haney Grünewald, Telitha Collier, Cornelia Ratliff, Mary Blagg and Fannie Lee own 4-2016 each; Etta Agee and Ardelia Shanks own 2-2016 each; John Pace, Otta'Pace, Danna Bonner and Zilla Bonner own 1-2016 each; Josephine Pierce owns 144-2016; Augusta M. Willard owns 12-2016; Octfvia A. Bozarth owns 24-2016; Ellen O. Blackburn owns 8-2016, making a total of 1084-2016 of the land involved in this writ of error that the named plaintiffs are entitled to recover, and judgment will be rendered in their favor for that interest, and for a proportionate part of $325.30 adjudged to plaintiffs by the trial court for rents, and against the remaining plaintiffs that they take nothing as against plaintiffs in error, C. C. Cobb and the Canadian and American Mortgage & Trust Company, Limited.

The defendants in error in their statement claim that Catharine Phillips is entitled to recover an interest, and it is true that she inherited a share of the land, but the record shows, and' the court below found that she had conveyed it before the suit was brought. The facts with respect to this are that J. L. Stagner, Price Stagner and Catharine Phillips inherited interests through their fáther and mother. J. L. Stagner made a general assignment for the benefit of creditors which passed his inherited interest to his assignee, who conveyed it to George P. Robertson. Some years after this assignment, Price Stagner and Catharine Phillips, joined by her husband, conveyed their interests to J. L. Stagner, and, he having died, those interests passed to his heirs who were not parties to the suit. Consequently neither Mrs. Phillips nor Robertson has title to this interest.

In the district court the plaintiff, George P. Robertson, recovered judgment against M. Logan for $350 as damages for the value of lumber converted, which was affirmed by the Court of Civil Appeals. Logan did not join in the application for this writ of error and hence that part of the judgment of the district court as well as the part of the judgment of the Court of Civil Appeals affecting only the south half of the DeMoss survey are unaffected by the action taken by this court.

J. M. Robertson has filed a motion stating that he was not served with citation in error before the cause was submitted to this court and asking that the portion of the opinion affecting him be eliminated. The original opinion was written on the assumption that the cause was to go back for another trial; but the action now taken in rendering final judgment as between the other parties makes it unnecessary that this court disturb the action of the district court as to him. While we think the court should not have allowed the severance, it is now a fact accomplished and furnishes no reason for remanding the cause as between the other parties as this would not remedy the trouble or protect the plaintiffs in error in any right or remedy which they can not enforce against their warrantor as the case stands.

A question has been raised as to whether mandate should issue from this court to the district court upon this branch of the case, or should issue to the Court of Civil Appeals, in order that the judgment of the latter court might be conformed to that here rendered and that mandate might be issued therefrom showing the disposition of the whole case. In entertaining the application for Avrit of error of the present plaintiffs in error from the judgment of the Court of Civil Appeals against them, this court treated the controversy between those parties and the original plaintiffs, affecting the title to the north half of the DeMoss survey only as distinct from the controversies between the original plaintiffs and the other defendants concerning other matters. The judgment of the Court of Civil Appeals upon the other controversies was unaffected by the writ of error, and -the cause as betAveen parties other than those to the writ of error remains in that court. It can therefore issue mandate upon all parts of its judgment not involved in this proceeding. But the cause as between the parties to this writ of error Avas removed to this court, and, final judgment being here rendered, the proper practice is for the mandate upon it to issue from this court to the trial court as in any other cause finally decided here.

Rehearing granted and judgment rendered in accordance with former opinion, reversing the judgment of Court of Civil Appeals, and further as above stated, costs to be adjudged as before.

Judgment rendered.