Wells v. Burts , 3 Tex. Civ. App. 430 ( 1893 )

The principal assignment of error insisted on by appellants assails the judgment of the lower court, because it involves the conclusion, that Whitis executed a deed to Miller in pursuance of the deed of trust giving him such power.

Our opinion is that the evidence warrants the conclusion.

Miller had possession and control of the property, claimed it, and exercised acts of ownership over it from about the time of the maturity of the trust deed until his sale to Emily Foreman, and that claim from the same source has been continuously asserted by those who succeeded to his rights to the present time, a period of over thirty years.

Steffy abandoned all claim to it; at least, he did not claim it from 1859 to his death, in 1873; he exercised no control over it, did not attempt to do so, paid no taxes, and apparently surrendered it to Miller's title; his heirs, after his death, apparently recognized the Miller title; they asserted no claim to it until their sale to Campbell in 1889. Thirty years had elapsed without claim by Steffy or his heirs. The property was twice sold at public sale as the property of Foreman under the Miller title, was purchased at last sale by defendant in 1868, and he has since claimed it by notorious claim and acts of ownership, by payment of all taxes, possession, and ouster of plaintiff Wells therefrom by action of forcible detainer.

Great weight should be given to these facts and circumstances in support of the presumption that a deed had been executed by Whitis, the trustee, to Miller; but in addition thereto, there is the testimony of defendant Burts to his impression and belief that he had seen such a deed. Burts may be mistaken, it is true; it may be that it was the deed of Laney to Miller that he saw; that deed was signed by Whitis as a witness, and was acknowledged before Burts, deputy of McDowell, county clerk; but this is not his testimony. His testimony tends to strengthen the presumption that Whitis executed the deed. The circumstances all conduce to prove this deed.

We see no sufficient grounds upon which to find that the lower court committed error in finding that such a deed was executed. McDow v. Rabb, 56 Tex. 158; Herndon v. Davenport, 75 Tex. 462 [75 Tex. 462]; Dailey v. Starr, 26 Tex. 562; Railway v. Jarvis, 69 Tex. 542 [69 Tex. 542]; Johnson v. Shaw, 41 Tex. 434; Garner v. Lasker, 71 Tex. 435; Manchaca v. Field, 62 Tex. 141.

Appellants ask a reversal upon the ground, that the court erred in admitting the testimony of Joseph Henderson, to the effect that Miller told him that he owned the house and lot between 1857 and 1860, and that his deed was burned before it was recorded. It was permissible to prove that Miller, being in possession, claimed the property, and that the deed under which he claimed was lost. The evidence was admissible for these purposes. The case was tried by the court without a jury, and it will not be presumed that the court gave other than legal effect to the testimony. If the trial had been before a jury, the judge should have limited the effect of the evidence, by a charge, to the legitimate purpose of claim of ownership, the existence and loss of the deed; but there being no jury, and the evidence being admissible, it will not be presumed that the judge misapplied it. Lindsay v. Jaffray, 55 Tex. 639, 640; Clayton v. McKinnon,54 Tex. 206; Melton v. Cobb, 21 Tex. 539.

There was no error in permitting Burts to testify as to his impression and belief that he had seen the deed of Whitis to Miller. Such testimony alone may not have been sufficient to establish the fact to be proved, but it was admissible with other facts and circumstances.

We can not sustain the assignment, that there was error in admitting the notes of Steffy to Miller Wheat, with the endorsements thereon. They were pertinent facts, a part of the case, and should not have been excluded.

It was in proof that the sheriff sold the house and lot under an execution issued by virtue of the judgment in the case of Harper v. J.H. Foreman et al., and it was not error to admit the sheriff's deed to Burts reciting such fact.

The fifth assignment of error complains that the court, in arriving at its judgment, erred in considering certain evidence adduced on the trial.

There are no findings of fact filed by the court, and we are not able to determine what particular testimony the court considered or what weight was given to any particular part of it. The proper method of presenting the question intended, is to object to the testimony, and save a bill of exceptions if the objections should be overruled; it can not be done by assignment of error to the consideration of the testimony by the court. It would be presumed, in the absence of something to the contrary, that the court gave to the evidence its legal and proper effect only.

We have virtually disposed of all assignments of error in the foregoing, and find none of them well taken.

We are of opinion, that the evidence supports and warrants the judgment of the court below, that there was no error, under the prayer of defendant's answer, in quieting his title to the premises, and that the judgment should be affirmed; and it is so ordered.

Affirmed.