Hamer v. Sanford

189 S.W. 343, 1916 Tex. App. LEXIS 1032

• Court: Court of Appeals of Texas
• Decided: June 22, 1916
• Docket: No. 1644. [fn*]
• Status: Published

Opinion

WILLSON, C. J.

(after stating the facts as above). That Mrs. Sanford, as her father’s ■devisee, owned the land at the time R. W. Poster as her guardian undertook to convey it to Nidever, is not questioned by Hamer. His contention was and is that it appeared that he had acquired her title. As supporting his contention, Hamer refers to proof made by Mrs. Sanford for the purpose alone of showing that she and he claimed title from Mark Poster as a common source, consisting of: (1) The application of R. W. Poster as guardian of her estate to sell 130 acres of her land, filed January 13, 1910; (2) notice of the filing of said application and return thereon showing it to have been posted as required by law; (3) order of the county court of Delta county granting said application and directing a sale of said 130 acres, made February 28, 1910; (4) report of a sale thereof to Nidever, filed February 28, 1910; (5) order confirming sale and directing title to be made to the purchaser, made March 7, 1910; (6) deed from R. W. Poster as guardian to Nidever, dated March 7, 1910; and (7) deeds from Nidever to Hamer, dated January 2, 1911, and January 7, 1914.

[1-3] Controverting Hamer’s contention, Mrs. Sanford insists that the testimony specified, having been offered by her and admitted only for the purpose stated, could not be considered as evidence of title in Hamer, unless offered by him, and that, as it was not offered by him, he was before the court without any evidence whatever of title in himself.

The rule in actions of trepass to try title is, it seems, that evidence offered by the .plaintiff to prove common source cannot be considered as evidence of title in the defendant, unless offered by him. Article 7749, Vernon’s Statutes; Ogden v. Bosse, 86 Tex. 336, 24 S. W. 798; Hardware Co. v. Davis, 87 Tex. 146, 27 S. W. 62. A qualification of the rule was stated in the case last cited as follows:

“If the plaintiff in an action of trespass to try title, in order to maintain his action, prove that both he and defendant claim from a common grantor, and if in doing this he should exhibit the defendant’s title, and it should appear upon its face to be superior to his own, he cannot succeed, unless he go further, and show that, notwithstanding its apparent soundness, it is for some reason invalid.”

It may be that, looking to the face of the orders directing and confirming the sale made to Nidever alone, the trial court should have indulged a presumption in favor of the existence of power to make them. Martin v. Robinson, 67 Tex. 374, 3 S. W. 550. If so, then it would have appeared prima facie from the testimony adduced by Mrs. Sanford to prove common source that Hamer’s title was superior to her own. If that was the attitude of the case, then it was incumbent on her to “go further and show that, notwithstanding its apparent soundness,” the title in Hamer for some reason was invalid. We think she did that. As shown in the statement above, she alleged in a supplemental petition that R. W. Poster never was guardian of her estate, and that he practiced a fraud on the county court of Delta county when he induced it to make the orders directing and confirming the same to Nidever, on the faith of his representations that he was such guardian. We think these allegations should be construed as a direct attack by Mrs. Sanford on those orders, and entitled her to prove that said R. W. Poster was not the guardian of her estate. As has already been stated, the testimony sufficiently showed, and the court found the fact to be, that R. W. Poster was not such guardian. If he was not, then plainly the orders made by the county court of Delta county were void, and Hamer was without title to the land.

[4] A further contention made by Hamer is that the trial court should have required Mrs. Sanford as a condition to the recovery of the land awarded her, to “refund so much of the purchase money paid by Nidever as was shown to have been used by R. W. Poster as her guardian in her necessary support and maintenance, and as was found by the court to have been so used.” The contention must be overruled. The liability incurred by Mrs. Sanford, if any, on account of necessaries furnished her by R. W. Poster while she was a minor, was a personal one, and not a charge on her property. We know of no rule which would have authorized the court to require her to discharge the liability she may have so incurred before awarding her a recovery of property she owned. Northcraft v. Oliver, 74 Tex. 168, 11 S. W. 1121.

[5] While we agree with Mrs. Sanford in the contention she makes that the judgment, in so far as it is in her favor, does not appear from the record to be erroneous, we do not agree with her in the further contention that the judgment is wrong in so far as it awards a recovery by Hamer against her of $415 as the difference in his favor between the value of the use of the land and the value of improvements he placed on it. It did not follow because Hamer failed to prove title to the land that he was not- entitled to an allowance for improvements placed by him thereon. If under all the facts and circumstances “he had good ground to believe, and did believe, that the title under which he entered was good, and, acting on such belief, he in good faith made permanent and valuable improvements which enhanced the value of the land,” he was entitled to the allowance claimed, notwithstanding the title he asserted was worthless. West Lumber Co. v. Chessher, 146 S. W. 977. The finding of the trial court that Hamer did that seems to be amply supported by testimony in tbe record. And Mrs. Sanford bas not referred us to and we bare not found testimony in tbe record wbicb would bave supported a finding to tbe contrary.

Tbe judgment is affirmed.

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