Hill v. Smith , 6 Tex. Civ. App. 312 ( 1894 )

The land in controversy was patented February 11, 1860, to the heirs of Green B. Cook, by virtue of headright certificate number 201, issued by the Board of Land Commissioners for Sabine County on the 1st day of March, 1838, for twenty-six labors of land, and is located in Haskell County. Appellee claims under the heirs of one Green B. Cook, who died in Sabine County in 1838; while appellants claim under a Green B. Cook who died in Robertson County about 1855 or 1856.

The survey upon which the patent was issued was made June 15, 1857, by J.T. Love, deputy surveyor, and recites that it was made by virtue of headright certificate number 201, issued by the Board of Land Commissioners for Sabine County to Green B. Cook on the 1st day of March, 1838. The evidence is sufficient to sustain the finding of the court that the Green B. Cook under whose heirs appellee claims was the one to whom the certificate was issued.

Appellants' first assignment complains at the action of the court below in overruling defendants' second application for a continuance. This application was made to enable appellants to obtain the testimony of one Mrs. Renfro and of R.H. Matthews, and recites, that on or about the 20th of September, 1891, defendants learned that said witness Renfro would testify that she lived in Sabine County, Texas, from about 1821 to about 1852; that while she lived in said county she was personally acquainted with the Green B. Cook under whom defendants claim, and that she knew of the time when he married, and that he married about 1833 or 1834 in Sabine County, Texas, and lived there with his wife up to 1840, at which time he removed to Robertson County, Texas; that during the time he lived in Sabine County the certificate by virtue of which the land in controversy was located was issued to him. This application does not, however, state from whom appellant gained this information, and in his testimony upon the trial he admits that he had not in fact gained it from any one, but only surmised that he could make this proof from the fact that he had learned that this lady lived in the neighborhood during the time named. The application does not show diligence under the statute, and we are not prepared to hold that the court erred in overruling it. It certainly did not, if the application is to be construed in connection with the testimony of the party who swore to it, given upon the trial. The evidence of the witness Matthews, for whose absence the application was also made, was in substance supplied by other witnesses.

We find no reversible error in the admission of the contract between De Witt C. Smith and Rebecca Cook for the location of this certificate. Appellee claimed under both parties to this contract, and we incline to think it was admissible as an assertion of right to the land at that early date. Hickman v. Gillum, 66 Tex. 314. If, however, we are mistaken as to this, its erroneous admission would not require a reversal of the judgment, in the light of the other evidence introduced, the trial having been before the court without a jury. Besides, the only objection presented by the assignment to the introduction of this instrument is, "because it is not executed by Rebecca Cook, and shows on its face that it is not a contract;" and we are clearly of opinion that this objection, which is the only one that should be considered by us, is not well taken. It was signed by the obligor, which was sufficient, when accepted by the obligee, to make it a contract. It was not necessary that this contract should have been filed, as required by the statute regulating the introduction in evidence of registered instruments, it being over thirty years old, and no objection interposed upon the ground that its execution had not been proven.

It is not necessary for us to decide as to whether or not the court erred in admitting the deed of May 1, 1862, from Mrs. Milbury Rice to De Witt C. Smith, and the deeds from S.H. Martin and M.C. Holmes to T.W. Ford, because, independent of these deeds, appellee showed title to an undivided interest in the land from the patentees, and this was sufficient to enable him to recover the entire survey as against strangers to this title.

It was not necessary for the certificate of acknowledgment to show that Mrs. Rebecca Cook was known to the officer at the time this one was taken (May 1, 1862). Driscoll v. Morris, 2 Texas Civ. App. 607[2 Tex. Civ. App. 607], and cases there cited.

We believe the court did not err in refusing to suppress the depositions of plaintiff's witnesses, upon the ground that he was present when they were testifying. It is not made to appear that he in any manner influenced their testimony, and under these circumstances we are not prepared to hold that the depositions should have been excluded, had the motion to suppress been made in proper time. Parker v. Chancellor, 73 Tex. 475 [73 Tex. 475]. This motion, however, was not made until after the parties had entered into the trial, and a number of the depositions had been read. The motion should have been made before the announcement of ready, so as to enable the parties to have had the depositions properly taken, in case they were excluded.

We find no error in the action of the court in refusing to allow appellants' witness Davlen to testify to what the deputy surveyor, Love, told him as to where he had located the Green B. Cook certificate under which appellants claim. We see nothing in the record which takes this case out of the general rule which excludes hearsay evidence; besides, this evidence was substantially supplied by the introduction of the field notes made by Love of this survey.

We think the court erred in permitting appellee, Smith, to testify to the conversation he had with Mrs. Cook, in which she told him that the certificate issued to her husband had been located in Sabine County, Texas, and afterwards floated and relocated in Haskell County. Smith v. Shinn, 58 Tex. 1; Herndon v. Davenport, 75 Tex. 462. But we think this error is not sufficient to require a reversal of the judgment, in the light of the other evidence, the trial being before the judge without a jury. Andrews v. Key, 77 Tex. 35; Schleicher v. Markward,61 Tex. 99. This evidence was merely cumulative.

We think there was no error in the action of the court in admitting in evidence the certified copy of certificate number 201, although it bore date on the 10th instead of the 1st day of March, 1838, and recited that it was issued to Isaac Lowe, administrator of Green B. Cook, instead of to his heirs. It was for the court to say, under all of the evidence, whether or not that was the certificate by virtue of which the land was patented. Mason v. McLaughlin, 16 Tex. 24; Pleasants v. Dunklin, 47 Tex. 357.

We think there was no error in the action of the court in announcing its decision as between appellee and defendants Hills and Wooley before proceeding with the trial as to the other defendants, especially as this seems from the record to have been done at the request, or at least acquiescence, of all the parties to the suit. The controversy between appellee and these defendants was confined entirely to the issue as to who claimed under the correct Green B. Cook, while the issue as to the other defendants was exclusively one of boundary, and no injury could have resulted from the practice adopted by the court.

We have had considerable difficulty in arriving at a satisfactory conclusion as to a proper adjustment of the costs between the respective parties. Appellee, as plaintiff, claimed the land as against all the defendants under the heirs of one Green B. Cook, and he having successfully maintained his claim, should of course recover all his costs, and as to him we have had no difficulty in concluding that the judgment of the court below is correct. The defendants R.N. and J.A. Hill, in their answer, pleaded over against plaintiff and their codefendants, claiming all the land under the heirs of another Green B. Cook. The other defendants, besides the Hills and Wooley, claim as pre-emptors adversely to both Cooks. The court gave judgment in favor of plaintiff against all of the defendants for the land and all costs, and subsequently modified this judgment by rendering judgment in favor of the pre-emption defendants for the costs over against Hill and Hill; and we have finally concluded that it committed no error in so doing. Appellee recovered the land from all the parties, and it follows that he was also entitled to recover his costs from all of them. Appellants Hill and Hill sought to recover the land from all the parties, but failed to maintain their title as against any of them. As to them, the pre-emption defendants were successful. Had the suit been only between the Hills and the pre-emption defendants, it is clear the latter would have recovered all their costs from the former, and we see no reason why the same result should not follow in this case. The Hills no less failed to make good their affirmative claim against their co-defendants, because appellee showed a better title than any of them. It does not appear that any of the items of the costs taxed as above set forth were peculiar to appellee and the pre-emption defendants and would not have been incurred in a suit between the latter and the Hills, nor is any complaint made that Wooley was not also made primarily liable with them.

We find no error in any of the other assignments presented by the appellants who have filed briefs. The pre-emption defendants have assigned errors, but have filed no briefs supporting them in this court, and they will therefore be treated as waived.

The judgment of the court below will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.