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location, to another. Held, that said plaintiffs deed executed in Indiana by the guardian of cannot complain on appeal that no sufficient au

the minors, undertaking to convey to Horthority was shown in the guardian to execute said deed.

ace Brown, from whom others of plaintiffs

deraign title, the certificate, before its loAppeal from district court, Victoria coun

cation, and thereupon the following occurty; S. F. Grimes, Judge.

red: "This deed, when offered, was objected Trespass to try title by W. S. Brown and

to by defendant upon the ground that there others against John O'Brien. Defendant had

was no authority shown for the guardian to judgment, and plaintiffs appeal. Affirmed.

execute the same, which objection was by A. B. & W. M. Peticolas and W. Y. Mc- the court sustained. The plaintiffs' counsel Farland, for appellants. Glass, Callender & suggested to the court that, as this deed Carsner, for appellee.

conveyed personal property, that it did not

require strict proof of the authority for its WILLIAMS, J. Appellants, some of whom execution, whereupon the counsel for the are heirs, and others vendees of heirs, of A. defendant asked the counsel for the plainB. Williams, sued in trespass to try title to tiffs the following question: "For what purrecover of defendant 1,280 acres of land pose is this deed offered in evidence? Is it granted to said Williams. Defendant claim- for the purpose of showing title to this ined through a sale of the Williams certificate terest in Horace Brown? To which the made in an administration on his estate, counsel for plaintiffs responded, in the preswhich was confessedly void, and under the ence and hearing of the court, "That is the statute of limitation of five years. Two of only purpose and object for which it could appellants, Mrs. Wilhite and Mrs. Davore, be offered, and that is the effect of the deed.' in reply to the plea of limitation, pleaded Thereupon the counsel for defendant ancoverture. Trial before the court without a nounced to the court that they withdrew jury, and judgment for defendant.

their objections, and the deed was then read Plaintiffs showed a title to the land, and in evidence, the counsel for plaintiffs asking were entitled to recover, unless the defense the court to note the fact that the deed was of limitation was sustained. The evidence read in evidence by consent." shows that defendant and those under whom 1. It was not necessary for defendant, in he claims have since 1880 had inclosed a order to sustain his plea of five years' limitapasture, which contains 5,000 acres or more, tion, to show payment of taxes on or deed in which they have kept and pastured their for any other of the tracts inclosed in the stock. The fence runs diagonally across the pasture. tract in controversy, including within the pas- 2. The possession of the Williamses shown ture all of it except about 256 acres which lay by the evidence was adverse to the plainoutside of the fence. Each of the successive tiffs, and was of a character sufficient to possessors held under a deed for this tract sustain defendant's plea. which was duly registered, and paid all tax- 3. The possession extended to the whole es due thereon, and there was a connected of the tract, notwithstanding part of it was chain of transfer connecting the different outside the inclosure. Deeds were on recpossessions. The pasture gates were kept ord showing the extent of the claim assertand the pasture was controlled all of this ed, and actual possession of a part, extendtime by those having such possession. It in- ed by construction to the limits defined in cluded some land which belonged to others, such deeds. some of whom lived in the pasture; but 4. The fact that in the defendant's chain those of the several owners who used the of title, back of the deeds under which the land used it in conjunction, and claimed the possession was held, there was a void adland to which they severally asserted title ministrator's sale, cannot defeat the plea, against all others, and the Williams grant Such deed was not a “forged deed." was thus held and claimed by defendant and 5. If the interests inherited by Mrs. Wilthose under whom he claims. There were hite and Mrs. Davore were still owned by some strips of vacant public land lying be- them, they would be entitled to recover, as tween the different surveys included in the their coverture would have prevented the pasture, but this fact was not known to the statute of limitations from running against defendant or his predecessors in the pos- them. The deed by their guardian would session under which he claims. The evi- not of itself be sufficient to pass title. But. dence of plaintiffs developed the fact that as the certificate was personal property, it an interest in the certificate was inherited is believed that the law of the domicile of from Williams by minors, children of a sis- the minors could have authorized its conter who survived him, residing in Indiana, veyance by guardian. And, if proper auand whose guardian in that state was John thority from the law or from the courts of R. Hobbs. Among such minors were Mrs. Indiana were shown for the deed which was Wilhite and Mrs. Davore, who married their offered in evidence, it would have been efpresent husbands before the commencement fectual to pass the title. The deed was ofof the possession under which defendant fered for that purpose by plaintiffs, and sought to establish title by limitation. In they asked the court to give it that effect. developing their case, plaintiffs offered a | But for their attitude, the defendant might law.

have adduced evidence to supply the facts John S. Stewart, for appellant. E. P. Hamessential to give effect to the conveyance.

blen, for appellee. The defendant admitted the deed to have

WILLIAMS, J. This suit was brought by the effect claimed for it by plaintiffs, and

appellee to recover compensation for damage this, we think, dispensed with the necessity done to her property, abutting upon the streets of proving facts showing authority for the of appellant, by its action in changing the es

tablished grade and digging ditches for the purconveyance. A ratification of it by the two

pose of draining other streets. The petition plaintiffs concerned might have been shown, alleged the taking and damaging of her property and, at any rate, their position in court was without compensation, and, under the decisions such as to estop them from disputing the

in this state, showed a good cause of action.

Judgment was rendered for plaintiff, and appelcorrectness of the action of the court in ac

lant appeals, without a statement of facts, and ceding to it. Big. Estop. 601-604; 3 Eng. without an exception reserved to any ruling. Ruling Cas. 310. There is no error in the The only assignment of error asserts, in sub

stance, that a recovery upon the facts alleged record, and the judgment is affirmed. Af

and submitted by the charge was contrary to firmed.

As a good cause of action was shown in the petition, and no error in the proceedings is pointed out, the judgment must be affirmed.

Affirmed. CITY OF HOUSTON V. HUTCHINS. (No.

950.) 1 (Court of Civil Appeals of Texas. Nov. 7, 1895.)

WALKER et al. v. PETERSON et al. EMINENT DOMAIN-COMPENSATION.

(Court of Civil Appeals of Texas. Dec. 18,

1895.) A property owner may recover damages for injuries to his property from a change in the TRESPASS TO TRY TITLE - EVIDENCE — ANCIENT established grade of the street on which his

INSTRUMENTS. property faces, and from the digging of ditches 1. In trespass to try title, plaintiffs claimed therein to drain other streets.

under a certain lost transfer of land certificate

No. 350, issued to a certain railroad company, Appeal from district court, Harris county;

and to which it was alleged to have been origS. H. Brashear, Judge.

inally attached. Held, that it was error to adAction by Spencer Hutchins against the city mit evidence that another certificate, issued to of Houston. From a judgment for plaintiff,

the same railroad company on the same day as defendant appeals.

No. 350, had a transfer pasted on it.
Affirmed.

2. Plaintiffs claimed under an alleged lost John S. Stewart, for appellant. E. P.

transfer attached to a land certificate. It ap

peared that the certificate was in the land ofHamblen, for appellee.

fice, but no transfer was attached to it; that

plaintiffs left the certificate, for location, with WILLIAMS, J. This suit was brought by

à firm, which located it on the land in dispute,

and caused it to be returned to the land office; appellee to recover compensation for damage that, before the trial, two members of such done to his property, abutting upon the streets firm died; that a person employed to settle the of appellant, by its action in changing the

estate of one of them had no recollection of

such transfer among his papers; and that the established grade and digging ditches for the

surviving member of the firm located the certifpurpose of draining other streets. The peti- icate, and had no recollection of any transfer. cion alleged the taking and damaging of his It was not shown that any search for the transproperty without compensation, and, under the

fer was made among the papers of such firm.

Held, that there was no predicate laid for the decisions in this state, showed a good cause introduction of secondary evidence of the conof action. Judgment was rendered for plain- tents of the transfer. tiff, and appellant appeals, without a state

3. Where a right is claimed under a lost

instrument, the contents of which are shown by ment of facts, and without an exception re

secondary evidence, if it appear that the instruserved to any ruling. The only assignment ment was executed more than 30 years before of error asserts, in substance, that a recov- the trial, the rule admitting ancient instruments

without proof of their execution applies. ery upon the facts alleged and submitted by the charge was contrary to law. As a good

Appeal from district court, San Saba councause of action was shown in the petition, ty; W. M. Allison, Judge. and no error in the proceedings is pointed out,

Trespass to try title by Richard Peterson the judgment must be affirmed. Affirmed. and George S. Thebo against H. S. Walker

and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Salon Stewart and E. L. Rector, for appelCITY OF HOUSTON V. HUTCHINS.

lants. John T. Walters, for appellees. (No. 949.) 1 (Court of Civil Appeals of Texas. Nov. 7, KEY, J. This is an action of trespass to 1895.)

try title, in which appellees, Richard PeterAppeal from district court, Harris county;

son and George S. Thebo, sued for and recovS. H. Brashear, Judge.

ered from appellants 640 acres of land in Action by Elvira Hutchins against the city

San Saba county. The land was located and of Houston. From a judgment for plaintiff, defendant appeals. Afirmed.

surveyed in November, 1874, by virtue of cer

tificate No. 350, issued to the Buffalo Bayou, 1 Rehearing denied.

Brazos & Colorado Railroad Company, and

the

Vol.

the field notes were returned to the general, legal representative. It is true that the lost land office the same month, but no patent transfer was last seen in Moore's possession; has been issued. Appellees claim the land but, as he received and held it as a member of through an alleged lost transfer from said the firm of Moore, Mabry & Alford, under a railroad company, conveying said certificate contract between said firm and one of the No. 350, in blank; that is to say, a blank appellees, it did not pertain to his individual was left for the transferee's name to be in business; and, such being the case, there is serted.

certainly as much probability of it remainWe think the court erred, as charged in ing in the

custody of his surviving partners appellants' first assignment of error, in per- as going into the hands of his heirs. Bemitting appellees to prove by the witness sides, if Moore had not received it as partSedberry that another certificate, issued to nership business, appellees failed to show the same railroad company, and on the same that a sufficient search had been made among day as No. 350, had a transfer pasted on it. his papers. In fact, it was not shown that The fact that the railroad company may any search had ever been made among his have transferred other certificates issued the papers for the missing transfer. It is true same day does not tend to prove that it trans- that an unlocated certificate may be transferred No. 350.

ferred by parol, and that such a transfer Appellants' fifth assignment of error is also may be proved by circumstantial evidence, well taken. No sufficient predicate had been as was done in Jones v. Reus (Tex. Civ. App.) laid for the introduction of secondary evi- 24 S. W. 676; but when an attempt is made dence of the contents of the alleged lost to prove title to such a certificate, or any transfer. Both the appellees testified that other property, by a written conveyance althey had seen a transfer, with blank for the leged to be lost, a proper predicate must be name of vendee, attached to the certificate. laid before the contents of the lost instruThe certificate was shown to be in the gen- ment can be proved. It is also true that the eral land office at the time of trial; and to contents, and even the execution, of a lost. have no transfer attached to it. Appellees instrument may be proved by circumstances; proved that in August, 1874, they placed it but, no matter what character of evidence is. in the hands of Moore, Mabry & Alford, land offered to prove those facts, the proper prediagents, for location; that said firm located cate must first be laid by showing that. it on the land in controversy, and caused it, search has been made for the missing paper with the field notes of the survey, to be re- | in the place where, if in existence, it would turned to the land office; that in 1878 or probably be found. Bounds v. Little, 75 Tex. 1879 appellees discovered that the transfer 320, 12 S. W. 1109. was not then with the certificate in the land It is further contended by appellants that office, and complained to Moore about it; evidence to prove the contents of the lost that Moore said it had become detached and transfer was not admissible, because its exemisplaced, but that he would find it among cution had not been proven. Unless the his papers, and have the land patented im- missing instrument would, if produced and mediately; that Moore died in 1883, and one made profert, be admissible without proof Denton was employed by his heirs to close of its execution, such proof will be necesup his business; that there was no adminis

sary. But according to the testimony of aptration on Moore's estate, and Denton testi- | pellee Peterson, who says that he saw the fied that his heirs delivered to him what lost transfer in 1862, it was over 30 years they claimed to be all the papers Moore had old, and would therefore be admissible as an in his possession at the time of his death, ancient document, without proof of its extamong which were old deeds, contracts, pat-cution. If it cannot be produced, and the ents, agreements, etc.; that he had no recol-evidence as to its antiquity is the same, we lection whatever of land certificate No. 350, think the rule admitting ancient instruments nor of any transfer of the same among the without proof of their execution will apply. papers turned over to him by Moore's heirs, Ammons v. Dwyer, 78 Tex. 640, 15 S. W. and he felt sure there was no such certificate 1049. Of course, to make the rule applicable, among those papers; that he had never seen its spirit and substance must be complied any transfer to said certificate No. 350; that with, and to do so will require proof that he had not searched for it, because about the instrument existed over 30 years ago, three years before he testified he had return- and, when last seen, was in a proper cused all the remaining papers to Moore's heirs. tody, etc. J. P. Alford, of the firm of Moore, Mabry & The question as to the right of the plainAlford, testified that he located the certifi- tiffs, under the facts proved by them, to cate himself; that he had no recollection of maintain a joint action to recover the land, ever seeing any transfer of same. It was is not free from difficulty: and as it can be not shown that he had ever made any search easily eliminated by an amended petition, among his own papers, or among such, if making Peterson the sole plaintiff, or by a any, of the dissolved firm of Moore, Mabry deed from him, reciting the mistake made in & Alford as remained in his hands. It was executing two deeds to him, and conveying shown that Mabry was dead, but no inquiry a half interest back to Thebo, and as there appears to have been made of his heirs or 1 is still an accumulation of undecided cases

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on our docket, we think we can, with pro- the claim has never been presented to the priety, leave this question undecided.

administrator, nor approved by the court. The judgment is reversed, and the cause re- She also resisted the application to sell, manded. Reversed and remanded,

upon the ground that, owing to financial depression a forced sale of the land would be attended with great loss to the estate. The county court for probate business, on the

20th day of April, 1892, rendered judgment DAVIS v. AMERICAN FREEHOLD LAND

for the company, finding that the estate was MORTGAGE CO.

indebted to applicant on the claim which (Court of Civil Appeals of Texas. Dec. 18,

had been duly presented to the administra1895.)

tor May 1, 1889, and allowed and approved APPEAL TO DISTRICT COURT - FILING TRANSCRIPT -INEXCUSABLE DELAY.

by the court October 15, 1889, and which, An appeal to the district court from a

when allowed, on May 1, 1889, amounted to, judgment of the county court is properly dis- principal and interest, $1,113.33, and $111.33 missed where the county clerk, instead of trans- attorney's fees, aggregating $1,224.66, and mitting the transcript to the first, or, in any

allowed interest thereon from May 1, 1889, event, to the second, succeeding term of the district court, as required by Rev. St. arts. 2204, the date of the approval; and also finding 2205, allows four terms of said court to inter- the mortgage on the land as alleged to sevene, and the only excuse appellant shows for

cure the claim, and so ordered the sale of failing to compel the clerk by mandamus to perform his duty therein is that the latter repeat

the land as prayed for in the application, edly promised that he would do so.

fixing the time of sale on the first Tuesday

in June, 1892. The administratrix gave noAppeal from district court, Bell county; W. A. Blackburn, Judge.

tice of appeal in the district court on the

same day, the 20th day of April, 1892. The Application to the probate court by the

clerk of the county court made out tranAmerican Freehold Land Mortgage Compa

script of the record not until the 28th day ny to compel Amanda Davis, administratrix

of June, 1894, at which time his certificate is of the estate of L. H. Davis, deceased, to

dated, and the transcript was filed in the sell certain land of the estate to pay peti

district court of Bell county, September 19, tioner's claim. There was a judgment for

1894. petitioner, and defendant appealed to the district court, where a motion to dismiss the

The appellee, in the district court, filed a appeal was sustained, and defendant ap

motion to dismiss the appeal, because of the

delay in prosecuting it, as shown, from the peals. Affirmed.

20th day of April, 1892, to September 19, Harris & Sanders, for appellant.

1894, the day of filing the transcript; claim

ing that there was such laches in the proseCOLLARD, J. The appellee, the Ameri- cution of the appeal as was not warranted can Freehold Land Mortgage Company, by law, and that the transcript was unlawfiled in the county probate court of Bell fully filed, and conferred no jurisdiction upcounty, in which the administration of the on the district court. The administratrix estate of L. H. Davis, deceased, was pend- filed answer to the motion, which was true, ing (the appellant, Amanda Davis, being as the court below so found, there being no the administratrix), an application to re- statement of facts in the record. The anquire her to sell certain land of the estate, swer set up that upon the rendition of the to pay a claim of the company which had decree in the county probate court, April 20, been duly authenticated, allowed by the ad- 1892, the administratrix gave notice of apministrator, approved by the court, filed,

filed, peal to the district court, "and asked the and entered on the claim docket. The ap- clerk of said county court to make out and plication showed that the claim so probated deliver to the clerk of this court a transcript was secured by deed of trust of the deceas- of the decree of said county court, and the ed upon the land sought to be sold, the deed papers and proceedings in relation thereto, of trust being valid, and subsisting at the as required by law; that said clerk promtime of the application. The claim was a ised her, through her attorney, A. J. Harris, note of deceased for $1,000, and certain in- to make out and deliver said transcript to terest coupon notes; the note providing that the clerk of this court, but failed to do so in case of suit thereon, and collection by at the July term of this court, 1892; that suit, the maker would pay all costs of col- said Amanda Davis, by her said attorney, lection, including 10 per cent. of the princi- again called for said transcript, and depal and interest on attorney's fees. The ap- manded of said clerk that he make out and plication to sell the lands shows that a re- return the same to this court, and he promsort to suit to collect the claim has become ised to do so, but again failed to do so. And necessary, whereby the estate has become said administratrix says that she repeatedly bound to the 10 per cent. on interest and called on and requested said county clerk to principal as attorney's fees. Mrs. Davis, the make out and deliver said transcript to the administratrix, resisted the demand for at- clerk of this court, and whenever said retorney's fees by exception, because the con- quest was so made, and it was made during tract did not call for the same, and because each term, and between every term of this court from and including the July term, the next day of the next term of the district 1892, and the January term, 1894, and after- court of the county after such appeal is wards, said clerk would promise that he taken there, it is made the duty of the clerk would at once go to work on said transcript, to transmit the transcript to the next sucand complete and deliver it to the clerk of ceeding term of such district court. Id. art. this court; that but for the aforesaid prom- 2205. ises of said county clerk, so repeatedly The question before us is not one of jurismade, said administratrix would have ap- diction in the district court of the appeal, plied to this court for a mandamus to com- but one whether the district court erred in pel said clerk to make out and file in this dismissing the appeal for failure to prosecourt said transcript; that said county clerk cute the appeal with diligence required by did make out and deliver the same to the statute. Now, we think that, while it was clerk of this court on or about the 28th day the duty of the clerk to make out and transof June, 1891, but the clerk of this court mit the transcript to the district court, it neglected to docket the same, and it was not was the duty of the appellant to see that filed and docketed in this court until Sep- he performed this duty in the time required tember 19, 1894, as she is informed, because by law, at least in a reasonable time after the clerk of this court had neglected to in- the appeal was taken. It was the duty of dorse said transcript. And this administra- appellant to use reasonable diligence to have trix says she is not in default, and said es- her case prepared for appeal, and filed in tate ought not to be deprived of a hearing the district court; that the clerk of the in this court in this cause, on account of the county court having failed in his duty to neglect of said county clerk; and she prays transmit the transcript to the first term of that said motion be overruled." The lower the district court after the appeal was takdistrict court, having taken this matter un- en, it became the duty of appellant to comder advisement, on the 16th day of Feb- pel him to do so by mandamus. There was ruary, 1895, decided that the motion to dis- failure in this for over two years after it miss should be sustained, and the appeal was might have been done, and such failure dismissed, to which judgment the appellant might have been properly held, as it was administratrix gave at the time notice of by the lower court, as good ground for disappeal to this court.

missing the appeal for failure to prosecute It is contended by appellant, by appropri- in time required by law. Four terms of the ate assignments of error, that the court er- district court intervened before the tranred in its findings of law that appellant had script was filed in the district court; the lost her right of appeal by her failure to law requiring it to be done to the first term file the transcript in the district court, be- after appeal, or to the second term. We cause it was the clerk's duty to file the tran- look to the analogies in cases appealed to script in the district court, and his failure the supreme court for the rule to govern the to do so in the time required by law does district court in dismissing an appeal from not defeat the jurisdiction of the district another court, and we find that a failure to court; and that the court erred in finding comply with the law and rules prescribed as law that the district court loses its juris- for appealing a case is ground for dismissdiction of the cause unless the transcript be ing the appeal, unless good cause be shown filed as required by law, as the jurisdiction why it was not done. Shanks v. Carroll, 50 is not affected by the time of filing the tran- Tex. 18; Brock v. Jarman, 1 Tex. 201; Mulscript in the district court; and the court

and the court ler v. Boone, 63 Tex. 94. The court below erred in dismissing the appeal after finding was not in error, in our opinion, in considerthat the failure to file the transcript in time ing the excuse offered by appellant for not was the fault of the county clerk, and not requiring the clerk by mandamus to make the fault of the appellant. We cannot agree out and transmit the transcript insufficient. with appellant that the court erred as stat- He had failed to do so, and it is apparent ed. It is true, the statute makes it the duty appellant could not have safely relied upon of the county clerk “to immediately make his promises. In the case of Ball v. Lowell, out a certified transcript of the papers and 56 Tex. 582, it was held that there was no proceedings relating to the decision, order, error in refusing to dismiss an appeal to the judgment, or decree appealed from, together district court from the county probate court with such decision, order, judgment, or de- where the transcript was filed within a cree, and transmit the same to the clerk of day or two after the time fixed for the meetthe district court on or before the first day ing of the first term of the court after apof the next term of such court." Rev. St. peal; the statute (the same as that under art. 2204. This becomes the duty of the consideration) providing that if the clerk county clerk immediately after the expira- could not, for want of time, transmit the tion of 15 days from the date of the judg- transcript to the first term, he could do so ment or decree and the notice of appeal, as to the next succeeding term of the district no bond is required of an administrator in court, after appeal. The court held that, appealing in such case. Id. art. 2201. But though the excuse offered by the clerk may if there should not be time in which the not have been altogether satisfactory, yet, clerk could make out the transcript before under the circumstances, it should be deem

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