Ellis v. Stone , 4 Tex. Civ. App. 157 ( 1893 )

This is the second appeal in this case. A judgment in favor of the present appellants was reversed on the former appeal.62 Tex. 325. The suit was brought by appellants against the heirs of Jesse Russell, to remove cloud from title to 1000 acres of land, part of the Jesse Russell league survey.

Appellants' petition alleges, in substance, that in 1850 Jane Hill, formerly Russell, and widow of Jesse Russell and guardian of their children, made a contract with one Williams to hunt up the Jesse Russell headright league certificate, which was lost, and locate and have the same patented, agreeing to give him one-half of the land for his services, he paying all the expenses, and that the contract was reasonable and fair; that said Williams performed his part of the contract; that afterwards said widow and Williams divided the land, setting apart the southwest half for the widow's community interest and the northeastern half for the children's one-half, and setting apart the 1000 acres in controversy off of the north end of the children's one-half to said Williams for his locative interest in their one-half; and the south end, comprising 1302 acres, to the children for their part. That said original contract of 1850 was authorized by an order of the Probate Court of Sabine County, where the guardianship was pending, and it and said partitions were reported to and confirmed by said court; that the probate records of said county, with said orders and reports, were burned in 1875; that plaintiffs own said Williams' title to said 1000 acres, and are in possession of it; that said widow sold her community one-half to said Williams in 1854; that said children have sold off their said 1302 acres; that for a long time said children were satisfied and acquiesced in said contracts and partitions, but finally began to claim the said 1000 acres, and clouded the title; that plaintiffs pray for the removal of the cloud, that their title be confirmed, and for general relief.

The defendants answered by general demurrer, several special demurrers, general and special denials, laches, and stale demand, and prayed that they be quieted in their title, that the cloud of plaintiffs' pretended title be removed, and for general relief.

L.G. Merrell was allowed, on the eve of the trial, over plaintiffs' objection, to make himself a party defendant as the vendee of some of the defendants pending suit.

The case was submitted to a jury, and verdict went for the defendants, and judgment was entered up by the court in their favor for the title and possession of the property, and awarding them a writ of possession for the same. A motion for a new trial was overruled, and plaintiffs appealed.

The second paragraph of the court's charge to the jury reads as follows:

"If from the evidence the jury believe that Mrs. Russell, the wife of Jesse Russell, afterward the wife of H.H. Hill, was appointed by the Probate Court of Sabine County guardian of the property of the children of herself and said Jesse Russell, and that she qualified as such, giving the bond and taking the oath prescribed by law; and you further believe, that in pursuance of an order of said court, the said Jane Russell, as guardian, made a contract with one J.K. Williams for the hunting up, locating, and procuring patent on the certificate described in the pleadings and in evidence as the Jesse Russell headright, and that she agreed, under the authority of said court, to give to Williams one-half of the land that should be obtained under said certificate, and that said Williams did, in pursuance of said contract, cause patent to issue on said certificate to said Russell survey, and that the ``acts and doings' of said Mrs. Russell (or Hill) in making said contract, and the ``acts and doings' of said Williams in procuring said land to be patented thereunder, were reported to and confirmed by said Probate Court of Sabine County, then in that case Williams would become the owner of one-half of said land, including one-half of the interest of the children of said Jesse."

This charge is complained of as casting a greater burden on appellants than was imposed by law; and authority directly in point sustains this contention. Wren v. Harris, 78 Tex. 349.

In the case cited, it was contended, that in the absence of authority from the Probate Court having jurisdiction of the guardianship, a guardian could make no valid contract disposing of part of a land certificate belonging to his ward. The Supreme Court denied this contention, and held, that under the Act of May 20, 1848, relating to guardianships, a guardian could make a binding contract for the location of a land certificate belonging to his ward's estate, in which it was stipulated that the locator should have part of the land in consideration of his services.

The charge in question is obnoxious to the doctrine announced in that case, and, in effect, required the jury, before finding for appellants, to find that the contract made by Mrs. Hill, as guardian of the Russell children, with J.K. Williams, was authorized and approved by the Probate Court. This contract was made in 1850, and Wren v. Harris, supra, is directly in point.

The court did not err in excluding the testimony of John L. Stone and J.K. Williams as to Mrs. Jane Hill's statements about having been appointed guardian of her children, etc. This evidence does not come within any of the exceptions to the rule which excludes hearsay testimony.

The court erred, however, in excluding the evidence of the witness Stone, to the effect that he had heard all the four children of Jesse Russell say that Jane Hill was their legal guardian, appointed by the proper court of Sabine County, and had authority to do what she did, and that said court ratified the partition made by Mrs. Hill and Williams, and authorized her to deed the land in controversy to Williams. Mrs. Hardin and Mrs. Martin, two of the children of Jesse Russell, are defendants in this suit, and the other defendants, excepting L.G. Merrell, are heirs at law of the other two children of Jesse Russell. L.G. Merrell claims under Mrs. Hardin, now Mrs. Stone. It was shown that the records of Sabine County were destroyed by fire, and if the evidence referred to was not admissible as proof of circumstances — declarations of interested parties against their interests — tending to show that Mrs. Hill had been appointed guardian by the Probate Court of Sabine County, and that in making the contract for the location of the certificate, and in making the partition of the land asserted by appellants, she acted under authority of said court, still they were competent evidence to be considered by the jury on the issues just named, because they were in the nature of admissions made by some of the parties to the litigation, and by persons under whom other parties to the suit hold.

Declarations or admissions in disparagement of title are admissible against the person making same, and against his heirs. They are also admissible against his grantee, not shown to be an innocent purchaser for value, if made prior to the grantee's purchase. Snow v. Starr, 75 Tex. 411; Hancock v. Lumber Co., 65 Tex. 225; 1 Greenl. on Ev., sec. 189; 5 Am. and Eng. Encycl. of Law, 367; Pickering v. Reynold,119 Mass. 111; Hayden v. Stone, 121 Mass. 413; Anderson v. Kent, 14 Kans., 207.

This court has not overlooked the fact, that in this State title to real property can not be conveyed or divested by oral declarations or admissions, except in cases where such declarations or admissions operate as an estoppel. But the admission of the testimony referred to does not convey or divest title. Appellants having shown that the probate records of Sabine County had been destroyed, had a right to prove by parol evidence that said records contained the orders which the witness Stone said the children of Jesse Russell admitted to him they did contain; and having the right to prove such facts by parol testimony, it was equally permissible to prove that prior to the acquisition of title by appellees from the heirs of Jesse Russell, said heirs admitted such facts. This is so because such appellees are privies — all (except Merrell) holding as heirs of the Jesse Russell children — and are not innocent purchasers, and the admissions were made against the interests of the persons making them. And as against Mrs. Martin and Mrs. Hardin, it was, of course, permissible to prove their admissions.

We do not hold that such testimony would be conclusive proof of the fact it tended to prove. We merely rule that it was competent evidence. It may have proved much or little, as the jury would have determined from a consideration of all the evidence bearing on the question.

And, for the purpose of proving the existence of the alleged probate orders, it was competent for the jury to consider, if such was the fact, the long acquiescence of the Russell children in the disposition made by their mother of the land involved, and their failure to assert any claim thereto. Such facts were circumstances admissible in evidence, to be weighed, with all the other testimony, by the jury. There was such testimony before the jury, but the court's charge may have prevented them from considering it on the issue above stated.

Appellees having introduced evidence tending to show that the heirs of Jesse Russell had laid no claim to the land in suit, the judgment of the District Court of McLennan County in the case of G.B. Stone and others v. J.K. Williams was admissible as a circumstance in rebuttal, tending to show that they had claimed the land.

In the other rulings made by the trial court, on questions likely to arise again, we do not think error was committed.

Although the question does not appear to have been raised in the court below, it is contended by counsel for appellees, that the contract between Mrs. Hill and J.K. Williams for the location of the Jesse Russell certificate was unlawful and void; and that the courts should not sustain his title for this reason; and that whatever errors may have been committed by the trial court, the judgment should be affirmed.

This contention is based upon the fact that Williams, at the time he entered into the contract by which he was to locate the certificate for half of the land, was an official surveyor. He did not locate the certificate in the county of which he was the surveyor; but sent it to a friend of his, who was a surveyor, and procured its location in another county.

If Williams had contracted to locate the certificate within his county, or if, in fact, he had located it in said county, the doctrine announced in Wills v. Abbey, 27 Tex. 203, and other cases cited by appellees' counsel, to the effect that the courts will not aid an officer to enforce a contract whereby he is to receive greater compensation for official services than is allowed by law, might be applicable.

But such was not the case. We do not think the contract in question was forbidden by law or contrary to public policy. The fact that Williams was an official surveyor for a given territory ought not to preclude him from making a contract and locating a land certificate in a county or district of which he was not the official surveyor, although his compensation under the contract was greater than the fees allowed by law to official surveyors. Holding, as we do, that the contract was not unlawful, it is unnecessary to decide what effect is to be given to the fact that it had been executed.

The case of Wills v. Abbey, supra, has been approved and followed by this court in Keith v. Fountain, 3 Texas Civil Appeals, 391. Those cases are distinguishable from the one at bar.

For the errors indicated, the judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.

Motion for rehearing refused.