Silverman v. Ponce , 268 S.W. 497 ( 1924 )

FLY, C. J.

This is an action of trespass to try title to two one ing 320 acres, known as lot 13, and the other 327.5 acres of land, known as lot 22, out of a tract known as the Adams-Staples farm lots in Jim Wells county, instituted by' Dilla Cohn Silverman, joined by her husband, Abe Silverman, and Archie Cohn and Louis Frank, the last two being executors of the last will of Philip Cohn, deceased, against ■ appellee, Oscar F. Ponce. The cause was submitted to a jury on special issues, only the first being answered, and upon that answer judgment was rendered ⅛ favor of appellee for the land.

Dilla Cohn Silverman was the wife of Phillip Cohn, deceased, and after his death she married Abe Silverman, who joined her in this suit. Appellee claims title to the land through a warranty deed from P. J. Harmon who was impleaded by appellee, and he sought to show that the' land had been conveyed to him by Philip Cohn through a deed which had never been recorded, was not produced, but was claimed to have been lost. The jury found that P. Cohn had executed and delivered to P. J. Harmon a deed to the lands in controversy, and the only material issue on this appeal is as to whether there was sufficient evidence bearing on the subject to uphold and sustain the verdict of the jury. If that deed was not executed the title to the land is undoubtedly in the estate of P. Cohn, deceased, and appellants should have recovered it from appellee. The solution of the whole matter of this appeal must be found in the facts shown upon the trial, and, while the brief of appellants covers over 100 pages of printed matter, and that of appellee over 100 pages, the facts have not been culled from over 400 pages of the statement of facts and marshaled and' arranged as they should have been to give proper assistance to this court in arriving at a correct conclusion. We have been driven to the unnecessarily voluminous and tedious statement of facts to verify and elucidate propositions of the parties.

• Philip Cohn died on May 7, 1912, in Chicago, leaving a will in which he appointed his widow, Dilla Cohn Silverman and Archie Cohn and Louis Frank executors of his estate. About 6 years after his death his widow married Abe Silverman. Mrs. Silverman has paid the taxes due on the land in controversy since his death. S. Gugenheim, H. Cohn, and Clark Pease sold a large tract of land lying in Nueces county, known as the “Adams-Staples farm lots,” on January 1, 1910, to P. Cohn. The land was subdivided into.farm lots, and Harmon was constituted agent to sell the same by virtue of a contract between P. Cohn and Harmon and Duncan. On June 18, 1910, Harmon, in his own name, and not as agent, sold to appellee the lands in controversy together with a third tract. The deed was recorded on July 25, 1910. No deed from P. Cohn was produced and the evidence fails to show that P. Cohn ever executed a deed conveying the land to Harmon or any one else. It is the claim of appellee that it was shown by, the circumstances that a deed was executed by Cohn to Harmon, but the facts and circumstances fail to satisfy us that a deed was ever executed and we are of opinion that there was no evidence before the jury of sufficient cogency to establish the execution and delivery of a deed. Louis Frank, who was associated with Cohn in business and very intimate with him, swore that Cohn did not execute a deed to Harmon for lots 13 and 22. The evidence showed that Harmon was always behind on payments on land sold by him as agent. P. Cohn lived and died in a distant state.

The execution and delivery of a deed may be proved by circumstantial evidence, but the circumstances must be of such a convincing and cogent nature as to produce actual conviction. Bounds v. Little, 75 Tex. 316, 12 S. W. 1109; Walker v. Caradine, 78 Tex. 489, 15 S. W. 31. The deed in question, from Cohn to Harmon, had no sanctity, or presumption of execution, given it by lapse of time, but it comes as a deed executed a few years since and never mentioned until P. Cohn’s lips were closed in death. Great caution should be exercised in weighing evidence of the execution of a deed of which there is nothing but circumstance upon which to depend. Proof of deeds under such circumstances offers too rich a field for fraud and deception.

The judgment will be reversed and the cause remanded.