Gainer v. Cotton

49 Tex. 101

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Moore, Associate Justice.

This is an action of trespass to try title, brought by appellants against appellees, to recover a league of land in Freestone county, and upon which the town of Fairfield is situated, granted on the 9th day of July, 1835, by the Governor of Coahuila and Texas, to Eedin Gainer.

Both appellants and appellees claim title under this grant.

Appellants claim one-half of the league as the community estate of their .mother, Amelia Gainer, the wife of Eedin Gainer at the date of the grant, who died December 18, 1842,’and the other half as the property of their father, and cast upon his heirs on his death in the year 1855; while appellees maintain that the legal or equitable title to the entire league of land had been divested out of Gainer and wife,—first, by a deed from Eedin Gainer to Eichard Sparks and Frost Thorne, bearing date July 26, 1836, for the east half of said league; second, by title bond executed by Eedin Gainer and Permelia Gainer, his wife, to D. H. Love, dated Uovember 27, 1837, for an undivided half of his (Gainer’s) remaining half of the league; third, by a deed from Eedin Gainer to Matthew Cartwright, bearing date April 17, 1840, for, as appellees maintain, the remaining undivided fourth of said league then belonging to said Gainer, but which, as they say, by mistake, was described in said deed as the half of the east half of said league, and which said Gainer had previously sold and conveyed to Sparks and Thorne. Appellees all claim under one or another of these conveyances; and if they succeeded on the trial of the case in the District Court in showing that, by them, the entire league of land was divested out of the grantor, Eedin Gainer, as they all hear date prior to the death of his wife, unquestionably neither she nor said Gainer had any interest whatever in the land which could pass to the heirs; and whether appellees have title or not, appellants cannot recover the land from them; and any errors into which the court may have fallen, if any can be found in the record, in its rulings, in respect to the muniments of title upon which appellees severally relied to connect themselves with one or the other of these conveyances from Gainer, is wholly immaterial. If, on the other hand, the entire interest of both Gainer and wife in the land was not divested out of them by these instruments, the judgment must unquestionably be reversed.

We need, therefore, only consider the assignments of error which refer to the rulings of the court touching, or in some way relating to, the admissibility in evidence of these instruments, or the weight and effect to which they were entitled.

To establish a conveyance of the east half of the league by Gainer to Sparks and Thorne, appellees offered, and the court admitted in evidence, the testimonio of an act of sale to them, passed, in the usual form of conveyances at that date, by Gainer before Adolphus Sterne, judge of the first instance for the jurisdiction of Nacogdoches, where the parties seem to have then resided, and within which the land sued for was then located. The execution of this instrument was acknowledged by Sterne, by whom it was made, on the 12th of March, 1838, before Charles S. Taylor, chief justice of Nacogdoches county; and, on this acknowledgment, was recorded in Milam county March 24, 1838.

Quite a number of objections were made to the introduction of this instrument. All of them, however, were, as we think, properly overruled. Certainly it was frivolous to object to the introduction in evidence of a conveyance for one-half of the land for which the plaintiffs were suing, because it may have been-irrelevant in respect to the controversy as to the other part of the league. This, if true, would have been a matter for instruction to the jury.

The instrument offered in evidence was not, as appellant’s counsel suppose, a copy of the deed, but was the second original, delivered to the vendee to serve him as evidence of his title; and at the time it was executed would have been evidence of the sale of the land, without other proof of its execution than the certificate of the primary judge by whom it was made and delivered to the vendees. The protocol or first original became an archive in charge of the judge before whom the sale was consummated; and by the statute of December, 1836, organizing the County Court, it was required to be deposited in the office of the county clerk of Nacogdoches county. (See section 33 of act organizing inferior courts, approved December 20, 1836.) There was no authority of law authorizing its withdrawal from the custody which it was committed by this statute. If it had, previous to the passage of this law, gone into the hands of the vendees, they might, no doubt, have had it proven up and recorded under the registration laws; and it would then have been admissible in evidence, as any other registered instrument. (McKissick v. Colquhoun, 18 Tex., 148.) Or a certified copy of the protocol by the clerk of the County Court of Nacogdoches county, in whose custody it should and, as we must presume, did remain, under the act of January 19, 1839, (see Laws 1st Sess. 3d Cong., p. 47,) might have been recorded in the county where the land was situate; and such copy would also have been admissible in evidence as a recorded instrument. But it was the testimonio or second original, and not the first original or protocol, which the law of 1836 contemplated should be proved and recorded in the county wherein the land lies. (Laws 1st Cong., pp. 154, 155, sees. 33, 37.)

That the acknowledgment of his signature by the officer before and jointly with whom the protocol was executed, and by whom the testimonio was made and delivered to the party interested to whom it was to serve for a title, is sufficient to admit the testimonio to record, has been too long and well established by this court for question. (Edwards v. James, 7 Tex., 372; Beaty v. Whittaker, 23 Tex., 526.) The instrument to the introduction of which objection was made in the last of these cases, was the counterpart of that now under discussion. It was the testimonio of an act of sale for a league of land, situated, at the time of trial, like this one, in Freestone county. The sale was executed before Adolphus Sterne, primary judge of Racogdoches county, Rovember 14, 1836, who afterwards, as here, acknowledged his signature before the chief justice of Racogdoches county; and on this certificate the testimonio was recorded, like this instrument, first in the county of Milam, on March 21, 1838. True, it was afterwards also recorded in Freestone county; but not until after the deed to the defendant had been placed upon record in that county. The court says: “ The manner of proving the instrument for registration, in this instance, has been held by this court sufficient for that purpose; ” though its admissibility did not depend upon its registration, as the party claiming under it, after the objections to it had been overruled, proved that Sterne and the assisting witnesses to the testimonio were dead, and that their signatures were genuine.

Though the act creating the county of Robertson was enacted before the record of this instrument in Milam county, it was proved that Robertson county had not been then organized, and that deeds for land in that part of Milam county out of which the county of Robertson was created were, at that date, still recorded in Milam county.

It is not controverted, that the legal effect of the deed, if its authenticity was properly established, vested the title to the east half of the league sued for in the vendees, Sparks and Thorne; and as the objections to its introduction as evidence, as we have seen, were correctly overruled, and no countervailing testimony wás introduced by appellants, it cannot be doubted that the jury were fully warranted in concluding that such was its effect.

Second. Four objections were made by appellants to the introduction in evidence of the bond of ¡November 27, 1837, from ¡Redin Gainer and Permelia Gainer, relied upon by appellees to prove the sale by Gamer to D. H. Love of an undivided half of the remaining half of the league of land granted him, which he then owned; but only one of these objections, if well taken, can be said to present any ground for the exclusion o'f the bond from the consideration of the jury. The others suggest matters for the consideration of the jury, in regard to the genuineness of the bond, and appellees’ rights under it. ■ We may, however, just as well consider them now as at any other time, as well as all other questions bearing upon this branch of the case, relied upon by appellants for its reversal.

On the 11th of August, Í874, nearly thirty-seven years after its date, and more than thirty years after its execution had been properly proven for record, and after it had been on record for nearly that length of time, as we may infer, William T. Gainer, one of the plaintiffs, made oath that he believed said bond to be a forgery, and that he believed the certificate of authentication upon which it was admitted to record was also a forgery. The affidavit of the belief of the forgery of the bond precluded appellees from introducing it in evidence as a recorded instrument, (Paschal’s Dig., art. 3716,) and imposed upon them the necessity of proving its execution as at common law. But the last clause of the affidavit was ■ not required or called for, and gave no additional force or effect to the first, and did not require of appellees additional proof of the execution of the bond, before it could go to the jury. If proved as a fact, it might have heen a circumstance to be considered by the jury in passing upon the genuineness of the bond. But it was not thus proved. On the contrary, appellees proved that the certificate was in the handwriting of the officer by whom it purported to have been made; and no effort whatever was made by appellants to rebut this evidence, or to sustain the charge insinuated in the affidavit, or to show a foundation for affiant’s belief that it was forgery.

The bond was not offered in evidence as a recorded instrument, but its execution was proved beyond the strictest requirements of the common law. “An instrument,” says Mr. Greenleaf, (vol. 1, sec. 569,) “ when produced and freed from suspicion, must be proved by the subscribing witnesses, or one of them.” Evidently, the suspicion from which the instrument offered must be freed before its execution may be proved by the subscribing witnesses, must arise from some-" thing apparent upon the face of the instrument. It is something of which the judge must take notice, and upon which he can act; and not matter of suspicion raised by extraneous evidence adduced by the opposite party, though proper to be considered by the jury in determining whether the instrument is genuine vd non. Where the subscribing witnesses are dead, or other sufficient reason is shown for their absence, and it appears the party by whom the instrument purports to have heen executed is the person against whom it is sought to be used, proof of the handwriting of one of the subscribing witnesses is sufficient to admit it to be read as evidence to the jury. (1 Greenl. Ev., secs. 572, 575.) Here, although suspicion may have been cast upon the instrument by the proof offered by appellants to impeach its genuineness, certainly nothing of this sort appeal’s upon the face of the bond. The identity of the purported obligor in the bond and the original grantee of the land, who was fully authorized to dispose of it without being joined by his wife, does not admit of question. The handwriting of both the subscribing witnesses was fully and satisfactorily proved.

If their handwriting had not been proven,—as the bond when offered appeared to be more than thirty years old; came from the proper custody; was free from blemish by any apparent alteration; was shown to have been in the possession of the obligee but a few months after its date; had been placed upon record in the proper county for more than thirty years; had been acted upon; and possession of the land had been held by obligee, and many others claiming under him, for more than twenty years,—evidently it was admissible in evidence without either accounting for the subscribing witnesses, or proof of their handwriting, or of that of the obligors. (1 Greenl. Ev., secs. 21, 570.)

It is not to be denied, that the discrepancy between the true name of Mrs. Gainer and that found attached to the bond, ’ and the fact that she could write, and was never known by any of the witnesses who testified upon the subject to have had her name written for her by any one but herself, or to have executed an instrument by making her mark instead of writing her name, while this bond purports to have been ■signed by her by making a mark, are circumstances well calculated to throw strong suspicion upon its execution by her; but the conclusions to be drawn from these circumstances were addressed to the jury, and not to the court. The law upon this point was correctly and clearly presented in the charge of the court; and, while admitting the full force of the evidence of appellant tending to impeach the genuineness of the bond, we think it cannot be denied that the countervailing testimony of appellees was amply sufficient to sustain the conclusion of the jury in its favor.

The objection that Love’s possession was nor under the bond, but under the deed made by Earner, as attorney in fact for Gainer, in satisfaction of the bond, does not require serious notice. If the power of attorney under which Earner acted was valid, Love "went into possession and held under and by virtue of the bond, as well as the deed executed in accordance with its stipulations. If the power, as appellants maintain, was invalid, the deed was not a discharge of the bond, and it was certainly as efficacious to support Love’s possession as if he had entered upon the land directly under it, without any deed whatever having been made him. The objection that the bond was stale, or barred by limitation, when Love took possession of the land, goes to the legal effect and consequences which follow from such possession, instead of furnishing a ground for the exclusion of the bond as evidence. But we do not propose to place our answer to the objection on grounds so technical. If the objection had been made in the proper manner, by an instruction as to the legal effect of the evidence, it would have presented no better reason for the reversal of this judgment than it does as here ihade. It may be true, that, under the common law, a bond for title, even when it shows upon its face that the purchase-money has been fully paid, vests in the purchaser only an equitable title; that the vendee, by delay, may lose his right to demand of the vendor the legal title, which in such case he holds in trust for the vendee; that the vendee’s right under the bond may become stale, or barred by the lapse of time; and that, by neglect and delay in acting upon the bond, he may become unable to enforce his superior equitable title, or to recover the land from the vendor, wrongfully in possession under the naked legal title. Or, even if we go still further, and admit that although the purchaser is in possession of the land under a bond for title which shows performance of the contract on his part, the vendor, after the lapse of sufficient time to bar an action on the bond, may, by reason of its superiority at common law to the equitable title, recover the land from his vendee; though certainly we know of no authority to support such a proposition. Still this would not meet the present case. ' The doctrine which appellants attempt to invoke and apply to it springs from and has no foundation save in the technical distinctions of the common law between legal and equitable titles. But the bond from Gainer to Love is not a common-law instrument. It was made before the introduction of the common law as the rule of decision in Texas. If, by the bond, any right to or interest in the land vested in Love, it was not a mere equity, which might become stale or be lost by his failure or neglect to assert it, or to demand some other character of conveyance. The purchase-price being fully paid, and the sale being absolute and unconditional, so was Love’s title. A more formal conveyance, or one which would better serve as evidence of the sale, might be desirable, and, if stipulated for, might be enforced by the appropriate tribunal, if its aid were invoked in the proper time and manner; but when made, it would merely afford more formal or satisfactory evidence of the title already vested in the purchaser, and would not confer a different character of right to that by which he previously held. This being the nature of the contract at the date of its execution, it was not affected or changed by the subsequent introduction of the common law, with its technical distinctions between legal and equitable titles. (Hanrick v. Barton, 16 Wall., 174.)

Love, from the date of his purchase and payment, was the absolute owner of the land. His delay in taking possession in no way lessened his right or affected his title, there being no one in adverse occupancy of it.

An absolute title fo an undivided half of the western half of the league being vested in Love by the title bond, it is unnecessary for us to examine the questions discussed by counsel, touching the .validity of the deed of May 31, 1851, by Earner, as the attorney of Gainer, unless it should become-necessary to determine whether Love, and those holding under him, are forced to rely upon this deed to maintain title to the specified part of the league which they claim, or are entitled merely to an undivided half of the western half of it, as stipulated in the bond. And this, evidently, will depend upon the fact, whether appellants are entitled to the whole or any part of the remaining quarter of the league claimed by some of the appellees under the deed from Gainer to Cartwright.

It is only necessary to add, in adverting to what has been said upon this branch of the case, that the court did not err in overruling the objections to the copy of the deed from Love to Gainer for the lot and shop in the town of. San Augustine. Appellants did not except to the notice to produce the original deed for want of time to enable them to do so, but merely because of the distance at which they lived from the place where the court was sitting; but they neither alleged that the original was not accessible to them, when notified to produce it, nor that it was then beyond their reach, but that they would be able to produce it at a subsequent day. The objection, that the deed was wholly irrelevant to the issues involved in the case, is untenable. It unquestionably tends to support the genuineness of the bond to Love, and to prove that he had fully paid for the land sold him by Gainer.

Third. On the 17th of April, 1840, Gainer executed and delivered to Matthew Cartwright a deed, whereby, in consideration, as recited in the deed, of the payment to him of the sum of one thousand dollars, he purports to convey to said Cartwright an undivided one-half of the east half of the league of land here in controversy. To the introduction of this deed appellants made no objection, but have assigned as error the instructions of the court, under which the jury by their verdict found, in effect, that it was the intention of Gainer to sell and Cartwright to buy an undivided half of the west half of said league; and that the land intended to have been conveyed was mistakenly described in the deed as the “undivided half of the east half.” The appropriateness of the charge or correctness of the verdict is not questioned by appellants, if there was sufficient evidence upon which to predicate the one and to sustain the other; but this they deny; and unless they are able to make good their denial, they have no cause .to complain of the judgment, or to ask for its reversal.

Unquestionably, there is no direct evidence of the alleged mistake; but evidently it was permissible to prove it by circumstantial evidence, just like any other fact upon which the jury were called to pass. Were there, then, any facts and circumstances in evidence tending to prove it, of sufficient pertinency to warrant the charge of the court? We think there were. More than three years prior to the date of the deed to Cartwright, Gainer had parted with all his interest in the east half of the league. There is nothing in the record to raise an inference that he ever denied the validity of his conveyance to Sparks and Thorne, or that he had repudiated or disputed their right to the land which he had conveyed to them. After making this conveyance he only claimed one-half of the league. When talking with Earner about making the division for Love, he seemed to suppose that it was the east half of the league from which Love’s quarter was to be taken. The inference is not unnatural, that he may .have forgotten which half of the league had been conveyed to Sparks and Thome. When this deed to Cartwright was made, Gainer owned but an undivided half of the west half of the league. If he intended to sell any other part of it, he designed, as we would have to infer from the evidence in the record, to perpetrate a fraud. This surely should not be presumed. It does not appear that he ever, subsequently to the executing of this deed, paid taxes upon any part of the league, or looked after or manifested any interest in it whatever; and though, subsequently, so hardly pressed as to be forced to appeal to his daughter for pecuniary assistance to return to Texas, he makes no allusion to any interest which he still had or claimed in it. So far as shown, he made no effort, though from his own statements utterly broken in health and fortune, to make the valuable interest which it is now claimed he had in this land of any avail to him. In view of these facts, we think it cannot be said that there was no evidence to warrant the charge of the court or to support the verdict.

■ The judgment is affirmed.

Affirmed.