Reagan's Administrator v. Holliman ( 1871 )

Walker, J.

This suit was brought in the district court by appellant, by petition filed May 27, 1858. It is an action of trespass to try title to 640 acres of land in Leon county, which land is particularly described in a copy of the field notes attached to and made a part of the petition.

The petition sets up that the land was located by virtue of a bounty certificate issued by the Secretary of War of the Republic of Texas, on the fourth day of March, 1839, No. 8056, to Abram R. Reagan. (This is probably a clerical mistake, as is shown by other portions of the record. It should be Taylor.)

The land was surveyed October 1, 1839", and the survey and certificate appear to have been duly returned to the land office.

The petition further states that on the thirtieth of December, 1852, said Taylor conveyed the land to his sister, Jane Reagan, by deed of gift; that Jane Reagan, at the time of her death, was the legal owner.

That about the first of December, 1856, the defendant, Holliman, in the lifetime of said Jane Reagan, and without her consent,, took possession of the land, and continued to use and occupy it,, claiming it as his own, cutting down and destroying and carrying off timber, etc.; and prays for damages and -possession.

On the eighteenth day of November, 1858, defendant filed answers, to-wit: 1. General denial and not guilty. 2. That defendant, on the--day -of--, 18—, purchased the land from Mirabeau B. Lamar; that previous to his purchase, Jane Reagan claimed to be the owner of the land in question in this suit, and also of another tract of 640 acres, both of which were located upon an eleven league grant claimed by Lamar, and known on the map of Leon county as the Fernando del Yalle eleven league grant; that the said Jane and her husband, being desirous of settling on one of the tracts, the husband, Joseph B. Reagan, as the authorized agent of said Jane, entered into a contract with Lamar by which he, Reagan, agreed to lift the certificate upon the land in question in this suit, located by bounty warrant for military services, and pay Lamar one hundred dollars, if the said Lamar would convey to said Jane or Joseph B. Reagan the other tract of 640 acres, located by virtue of the bounty warrant, for being in the battle of San Jacinto; that, in pursuance, of the contract, Lamar made to Joseph B. Reagan a title to the land located under the San Jacinto warrant; that plaintiff’s intestate went into possession under her title, and continued in possession to her death; that before defendant purchased he called upon Mrs. Reagan, and she disclaimed having any right, title or interest in the land, and said she had no con-' trol of the same, and that it belonged to Lamar; that in consequence of this statement he purchased of Lamar, which he would not have done but for her statements.

Defendant sets up occupancy in good faith, and valuable improvements to the amount of $1700, for which he asks judgment in reconvention. To this answer the plaintiff files exceptions,

1. That the plea does not describe the eleven league grant by metes and bounds.

2. Th.e answer does not show legal or bona fide title in Lamar, or how, or through whom he derived title, or that it was an older, better or superior title to that of Mrs. Reagan.

3. That the answer does not allege that Mrs. Reagan consented to the contract of her husband with Lamar at the time, or that she afterwards ratified it, or that she received any consideration ; and does not show that -the contract was legally or equitably binding upon her.

4. That it is not alleged that Mrs. Reagan made any legal conveyance, or relinquishment to Lamar of the land.

Three other exceptions are taken, substantially the same as the above.

On May 20, 1859, defendant filed an amended plea, in which he sets up the statutes of limitation of three, five and ten years, by himself and those holding under him.

On May 15, 1860, plaintiff, by way of replication to the plea -of settlement, and to the alleged disclaimer cf Mrs. Reagan to defendant, alleges the bodily and ill-health and imbecility of mind of Mrs. Reagan at the time of the contract between her husband and Lamar, and also at the time of the alleged disclaimer, and her incapacity, in consequence .thereof, of asserting or protecting her rights.

On May 19, 1860, defendants filed' a second amended answer, alleging that the land sued for is a part of an eleven, league grant, made on the eighth day of May, 1881, by the Mexican government, by her legally authorised commissioner, Francisco Madero, to Fernando del Valle; and pleads the same-in bar to plaintiff’s suit.

Upon this state of the: pleadings the parties, at the Spring term of the court, 1860, proceeded to trial.

The several exceptions- of plaintiff to the special pleas of the defendant were overruled by the court, and the plaintiff excepted.

The plaintiff then read in evidence the land office copy of the certificate and field notes mentioned in his petition, and introduced witnesses to prove the possession and occupancy of Holliman, since the spring of 1857 ; and here rested.

The defendant then offered in evidence the affidavit of Wm. B. Stokes, one of his attorneys, to lay the foundation for parol proof of the execution of a protocol and testimonio to del Valle, of the eleven league grant, from the commissioner of the Mexican government.

Also the depositions of Sylvester Portillo- and Antonio Super-ville, to establish, by parol, the execution of these instruments and their contents.

If ext a paper purporting to be a power of attorney from Jane-Reagan (alias Jane Taylor) to her husband, Joseph B. Reagan, and a purported agreement executed by Joseph B. Reagan, to Mirabeau B. Lamar.

Each of which was objected to by the-plaintiff, the-objections overruled by the court, and the- plaintiff excepted.

There are eight assignments- of error in this- case, and we think most, if not all of them, are well taken.

The court erred! in overruling the exceptions- to- the first and second special pleas.

The- affidavit of Wm. B. Stokes did not-lay a-legal- foundation for the introduction of secondary evidence of the eleven league grant to Fernando del Valle, or the contents of the protocol or testimonio of the grant.

Hence the evidence of the witnesses Portillo and Superville was incompetent, and ought not to have gone to the jury.

The power of attorney of Jane Reagan (alias Jane Taylor) was not a power legally executed to enable the husband, whom it is attempted to make her attorney, to convey her separate estate. There was no privy examination, nor is 'there any certificate of the officer before whom the acknowledgement purports to have been taken, that she ever expressed herself satisfied with the power, or with her husband’s acts under it.

The alleged compromise with Lamar was not for the benefit of her separate estate, nor to pay her debts, nor to afford her a support, or her children.

The husband endeavored to surrender her title to one tract of 640 acres, to get in the supposed outstanding title of Lamar to another tract of the same number of acres, a,nd was to pay Lamar $10© in money besides. Lamar attempted to make title to Reagan, but, so far as is shown in this case, had none to make.

Such transactions between husband and wife are always to be closely scrutinized, and they will not be upheld when there is even slight evidence of fraud or undue influence; nor can they be supported where they fail in the absolute requirements of the law.

There are no intervening equities here to stand in the way of a proper administration of justice. Holliman has no title in himself, either on paper or under the three,’ five or ten years limitation. And the outstanding title set up in- Lamar, even if good, would not be held good against Mrs. Reagan, for she received no consideration for the compromise made by her husband with Lamar, and this is still a controversy between the representatives of Mrs. Jane Reagan and those of Mirabeau B. Lamar, and the latter cannot take something for nothing from a court of equity jurisdiction.

The paper evidencing the contract between Joseph B. Reagan and Lamar should not have been admitted in evidence. It proved nothing to bind Mrs. Reagan; nor is she in any way estopped by it from setting up title to the land in controversy; nor is she es-topped by her declarations to Holliman, if made in ignorance of her rights and not intended to deceive him.

There was error in the court refusing the charges asked by the plaintiff below.

A new trial should have been granted. For these reasons the judgment of the district court is reversed and the cause remanded, to be proceeded in in accordance with this opinion.

Reversed and remanded,.