Southall v. Southall , 6 Tex. Civ. App. 694 ( 1894 )

1. William Southall and Louisa Davis, both colored, lived together from about 1868, without being married, until March 17, 1889, when Louisa died. They had one child, the plaintiff, John Southall. The father married defendant, Ella Southall, in 1890, and died on August 27, 1891.

On July 10, 1869, the lot sued for was purchased with the money of Louisa Davis, both acting in the purchase, the deed, however, being made in the name of William Southall. They established their home upon this lot, and lived there together with their son until Louisa's death in 1889, and after that William continued to live there, and he and his wife, Ella, lived there with the son, until he (William Southall) died. Some months afterwards Ella excluded plaintiff from the property, and this suit was filed by plaintiff, the son, to try title thereto.

2. Witnesses testified to declarations by William Southall at various times that Louisa's money had paid for the lot and that it was hers, and not his; and one testified that he stated that upon his mother's death the property would go to the son.

Conclusions of Law. — The second assignment is, that there was error in admitting a certified copy of the deed from Charles Kunzmann to William Southall, "because plaintiff had not established the loss of the original, and had not made affidavit rendering the copy admissible." The certified copy was offered under the statute, and it seems to have been otherwise unobjectionable. The rule in reference to the use of copies of recorded instruments as evidence is purely statutory, and the statute requires an affidavit by the party that the original is lost or that he can not procure it. The affidavit was by plaintiff's attorney, who was authorized by another statute to do so (Revised Statutes, article 5), and among other things stated that neither he nor the plaintiff could procure the same. The affidavit was, we think, all the statute required.

The third assignment asserts that the finding of the court that the purchase money of the premises was paid by Louisa Davis is contrary to the evidence. The testimony was principally oral, and there was considerable testimony which, if credited, would lead to that finding. There is no good reason for us to revise the judgment in this regard. To the mind of the judge who saw and heard the witnesses, this testimony may have been both clear and satisfactory, which appellant contends should have been the case in order to admit of a trust being engrafted on the legal title of William Southall.

It is further insisted by appellant that plaintiff's claim was a stale demand. Under the authority of Montgomery v. Noyes,73 Tex. 203, and Mayes v. Manning, in same volume, page 43, stale demand was available to this defendant under the plea of not guilty.

Appellant rests this question upon the argument, that the taking of the deed in Southall's name was an act hostile to the interests of Louisa Davis, and limitation, as it is applied in cases of stale demand, should be reckoned from that date.

The principle relied on is stated with clearness in Hunter v. Hubbard, 26 Tex. 548, thus: "When the trust, however [distinguishing from express trusts], is merely implied or constructive, there has been some disagreement among the cases, but the better opinion seems to be, that as in general the facts out of which such trust arises from their very nature presuppose an adverse claim of right on the part of the trustee, by implication, from the beginning, the statute will commence to run against the cestui que trust from the period at which he could have vindicated his right by an action or otherwise."

This rule has no application to the facts of the case before us. The evidence shows that the purchase of the property and the taking of the deed in the name of Southall were the joint acts of Southall and Louisa Davis. Not only this, but the cestui que trust entered into possession of the property at the time Southall did in 1869, and remained there until her death in 1889. During this period he had done no act indicative to her of an intent to claim the property adversely to her right, and she was in possession of and used the property in the manner she desired, which was in company with him. His declarations indicated that his possession was subordinate to her title, and that he was there by right of her ownership.

An equitable title recognized as this was, and exercised by a continued possessory use of the property, does not become stale. The error alleged in the ruling of the court on an exception to the sufficiency of plaintiff's pleading wherein his minority was set up, presents an immaterial question.

It is our opinion that the judgment should be affirmed.

Affirmed.

ON MOTION FOR REHEARING.