Sullivan v. Dimmitt ( 1871 )

Ogden, J.

An action of trespass to try title to two leagues of land was instituted by the appellees in 1867, against the appellants, and it appears from the pleadings and evidence in the cause that both parties claim title from the same common ancestor. The plaintiffs below allego in their petition that the defendants, in 1866, entered upon and took possession of said tract of land, committing sundry trespasses and wrongs, to the great damage of petitioners, and make the usual prayer for title, possession and damages, etc. As both plaintiffs and defendants claim tide from and under one Victoriano Zepeda, the question for judicial determination is in whom the title and right of possession lies; and in determining that question we must he governed by the lights of former decisions on questions analogous in form and character. It is a well settled principle that a plaintiff who would recover against a defendant in 'possession must do so, if he recover at all, on the strength of his own title, and not on the weakness of his adversary’s ; and therefore, in this cause, unless the plaintiffs below have established a good and valid title.in themselves, they cannot recover as against the defendants, though they hold a mere naked possession. On the trial of this cause the plaintiffs offered in evidence a certified copy of a deed to the land in controversy, from the records, of Bexar county—to the introduction of which the defendants objected, because the certificate showed that the land was situated in Goliad county, and that this was a copy from the records of Bexar county. The objection was overruled, and the copy read to the jury. We think this was in violation of articles 4988 and 8716, Paschal’s Digest. The record in Bexar of title to lands in Goliad is not such a record as the law provides may he used as evidence of title, nor such a record as would authorize the use of a copy for the same purpose. It is suggested by counsel, that at the time the deed was recorded in Bexar, the county of Goliad was not organized, and that no record could have been made in that county. Perhaps proof- of that fact might have excused the want of a compliance with the law, while the county of Goliad was unorganized. But the county of Goliad had been organized over twenty years when that paper was offered in evidence, and there was no excuse for offering the copy from the records of a distant county.

But we can discover no objection to the introduction of the certified copy from the records of Goliad county, of the same instrument'. It was duly proven up by one of the- subscribing witnesses, in compliance with the law then in force, and was duly recorded. The objection to the introduction in evidence of the transcript from the district court, of a deed there recorded in 1853, was well taken, and should have been sustained by the court. There wad no law in 1853 requiring or permitting the registration of deeds in the district court clerk’s office, and therefore no copy could be used as evidence, excepting as a transcript of a .judgment of that court under certain circumstances, which did not exist in this case.

There was no objection to the intervention of Teel & Cocke, nor. to the introduction of the testimony offered by them. Upon this testimony the plaintiffs and intervenors obtained a judgment for the entire two leagues of land, with the exception of four hundred acres, which were adjudged to the appellant. We think there was error in this judgment, sufficient to warrant a reversal, without regard to the claim of the defendant, or the evidence introduced by him on the trial. The plaintiffs should have recovered the whole, or less than they did. How much land the deed from the records of Goliad county conveyed, if indeed it conveyed any, need not now be inquired into, as, in our opinion, the title set up by the defendants, and proven on the trial, must settle the- question of title. The defendants proved by two witnesses that -Victoriano Zepeda, the original grantee of the land, made, or attempted to make, a verbal transfer of the land in March, 1834, to one Eamon Musquiz. Defendants also offered in evidence the sworn statements of three other witnesses, taken before the judge of the first instance, of the city of San Antonio, in 1835, soon after the death of Zepeda, in relation to the sale of the land to Musquiz. These statements were ruled out by the court as not legitimate testimony to go to the jury; to which ruling defendants excepted.

The right to take the examination of witnesses before an officer authorized for that purpose, with the view of perpetuating their testimony, was fully recognized and established by the civil law many centuries ago (Domat, Civ. L., 2036); and is still recognized in the English chancery courts as a practice admissible, and indeed, under certain circumstances, absolutely necessary for the protection and maintenance of the rights of parties. This practice is adopted in nearly, if not quite, every State in the Union (Story’s Eq. Juris., 1505), including the State of Texas (Pas. Dig., 3734), and is and was the law of Mexico at the time of taking the testimony in 1835. The court therefore erred in excluding the testimony of the three witnesses, whose examination was had before the judge of the first instance, in the city of San Antonio.

That a bona fide verbal or parol sale of land, made in 1834, was sufficient to convey a good and indefeasible title, has been too often judicially decided in the affirmative, in the States and countries governed by the civil law, to be now questioned, and we need now only refer to the decisions of our own court for authority to reiterate the same doctrine. (Scott & Solomon v. Maynard and wife, Dallam, 548; Briscoe v. Bronaugh, 1 Texas, 326; and Monroe v. Searcy, 20 Texas, 348.) And the same doctrine is held in Louisiana in the case of Gonzales, et al., v. Sanchez and wife, 4 Martin, N. S., 657.

The only question in regard to a verbal sale, as raised by the records in this case, is as to the want of delivery of possession at the time of sale. The weight of authority, in countries where the civil law obtains, is that possession must accompany the sale; not that the delivery of possession is a part of the sale, hut because in such cases possession -is the only visible evidence of ownership, and if such sales of real estate were generally recognized without requiring the possession to accompany the sale, there would he but little protection against fraud and imposition. Besides, the authorities which require a delivery of possession, in order to perfect .a verbal sale, maintain that doctrine upon the hypothesis that the owner is in possession of the property at the time of the sale, and that the transfer could not he perfected until a transfer or delivery of possession. But in this country, at the date of the sale from Zepeda to Musquiz, when most of the lands were wild and held, not by possession, hut by title only, and when a large proportion of the owners of the soil never saw the lands for which they held a .grant, it might be difficult to deliver actual possession, or to deter-* mine what acts would constitute a delivery. A true construction of the law requiring a delivery of possession to accompany the sale of real estate, as established by the best civil law writers, is that where the seller has possession of the property he would sell, be must deliver up possession to the purchaser, at the time of the sale; and when he does not hold possession, he must authorize and empower the purchaser to take possession at his pleasure.

Domat, in describing what is necessary to constitute a delivery ¿of immovables, says, among other things, “ that possession is deEvered by the seller carrying the buyer upon the place (or property sold), or by only showing him at a distance, or by consenting that he take possession.” (1 Domat, 272). Mackeldry, in discussing the same subject, says : “ The object of delivery is, to convey to ;the receiver dominion over the, thing; that is, to enable him to exercise judicial power over the thing, by affording him the physical .power over it, Hence it follows that the delivery must be considered as complete, as soon as the receiver is enabled to exercise physical power over the thing.” In the Case of Monroe v. Searcy, 20 Texas, 350, Chief Justice Hemphill held that where a verbal sale of land was made in 1834, and the purchaser did not take possession until 1838, the sale was valid and binding. We are therefore of the opinion that a verbal sale of wild and unoccupied land in Texas, in the year 1834, might be a good and valid sale, notwithstanding no actual delivery of possession accompanied or followed the sale. We are therefore of the opinion that the court erred in its instructions to the jury, in restricting it to the consideration of a verbal sale which was accompanied by delivery of possession. Wo are also of the opinion that the verdict of the jury was not supported by the evidence. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.