Peak v. Brinson , 71 Tex. 310 ( 1888 )

Walker, Associate Justice.

February 17, 1885, the appellees brought suit in trespass to try title and for partition, claiming together one-fourth interest in a tract of twelve and five-eighths acres of land.

All parties claimed under Vienna Field; the plaintiffs as heirs, the defendants through deeds. She was married to Dr. Sam Field in 1871 and died without issue January 8, 1880, her husband surviving. She left two sisters and the descendants of two others. The petition recognized the right of the surviving husband to one-half and of the two living sisters to one-eighth each of the property. They were made defendants with H. E. Cetti and C. M. Peak.

It appeared that December 5, 1874, the said Sam Field and his wife, Vienna, made their promissory note for two hundred and six dollars with five per cent interest per month, payable one month thereafter to Tidball, Van .Zandt & Co. And to secure it they executed to K. M. Van Zandt, of the firm, of payees a deed of trust upon the land in controversy with power to sell. The money obtained by this note was used in necessary care for Vienna Fields, who, for the greater part of her married life, was an invalid. Interest was paid on the note to June 5, 1875, and six dollars upon the principal. July 29, 1876, Dr. Field and Vienna were still living together as man and wife when she made a power of attorney to her husband, giving him authority to sell her lands. The power was acknowled in the statutory form.

Acting under this power of attorney, the husband sold the land in controversy, October 5, 1876, to Mrs. Emma Cetti for seven hundred and twenty-five dollars, of which was the two hundred dollar note secured by the deed of trust to Van Zandt, recited as bearing ten per cent per annum interest, and amounting to two hundred and twenty-five dollars, and which was assumed by the purchaser.

March 17, 1877, Emma Cetti and her husband, Zane, by their deed conveyed the east half of said land to the defendant, H. E. Cetti. The deed was duly recorded June 28, 1877, and the vendee has been in possession ever since, cultivating, using and enjoying the same, paying all taxes thereon — thereby perfecting title under the statute of limitation under Ms plea of five years limitation.

March 15, 1877, said Emma Cetti and her husband executed their bond for title for the west half of said land to O. M, Peak, and on March 15, 1879, they executed to said Peak a warranty deed for the said west half. Subsequent to the death of Mrs. Vienna Field, the surviving husband conveyed, October 2, 1886, all his right in the land to defendant, H, E, Cetti. * The two sisters, in April, 1884, deeded their interest to Emma Cetti. C. M. Peak died pending the suit, and his widow, Florence, and his daughter, Clara Walden, were appointed in his will his executors. He left Clara Walden, Howard, Lillie and Olive Peak children, but by will this land was devised to Florence Peak, Clara Walden and Olive Peak. Howard and Lillie Peak disclaimed.

The money obtained from the sale of the land was used for support, etc., of the wife, as testified to by the surviving husband. The note was taken up by Mrs. Cetti at the purchase, and was set up by H. E. Cetti as ah equity which, until it should be paid, would be a bar to the claim by the plaintiffs. Plaintiffs, in replication, among other things, pleaded that the note was barred by limitations.

The defendants Florence Peak and Clara Walden pleaded, nob guilty, and a general denial was interposed for the minor Olive Peak. On the trial the note—indorsed in blank by Zane Cetti, the husband, and Emma—and the deed of trust were offered in evidence, and objections were made to the testimony: first, because irrelevant and immaterial; second, the note was barred by limitation. The objections were sustained.

After the death of the maker of the trust deed it could not be foreclosed by the trustee, and was available as a security only through judicial proceedings. She died January 8, 1880. The equity claimed by reason of the unpaid note and security was pleaded September 29, 1886, and by H. E. Cetti alone. The statute of limitation had been pleaded. The defendants together were the acknowledged owners of three-fourths interest in the land, and upon the acquisition by H. E. Cetti of the east half of the land by limitation, the interest of the defendants increased to seven-eighths. The limit of possible claim to reimbursement from the plaintiffs would be one-eighth of the amount of the note. The parties against whom, as a money-claim, the note could- have been urged were in court] all the heirs were parties. The proper pleadings to make available whatever of force might have been in the claim, and against the proper parties, were not in the record. "We see no error in the holding of the court below that the testimony was irrelevant as well as immaterial, being barred by limitation.

Nor is the action of the court material error, if error at all, in striking out the trial amendment of defendant H. E. Cetti, alleging his ownership of the note and mortgage, and asking that it be declared a lien upon the land, and that partition be postponed, etc. This at least became immaterial when he recovered all the land he asserted claim to. The appellants, who lay claim to the west half, had only pleaded not guilty. Nor had they any connection with their co-defendant, H. E. Cetti, save that they held different parts from the same vendor. They have no interest whatever in the question, and can not complain of the ruling of the court.

Nor is the assignment well taken complaining that the court charged the jury that the power of attorney of Vienna Field to her husband and his deed under it were void as a conveyance of the separate property of the wife. This ruling was in accordance with the decisions of this court in Conner v. Bout-well, 53 Texas, 627. The defendants were not concluded by the conveyance of the wife’s separate property made by the husband, acting under power of attorney from the wife.

The costs taxed against Florence Peak, Clara Walden and Olive Peak were so taxed against them as tenants in common taking in the partition, and in proportion to their interest. In such case it was not error to order execution to issue for the costs.

The judgment below is affirmed.'

Affirmed.

Opinion delivered June 30, 1888.