Frost v. Crockett , 1936 Tex. App. LEXIS 1795 ( 1936 )

On Motion for Rehearing. The judgment of June 11 of 1936, reversing and remanding this cause, through an opinion filed the next day by Chief Justice PLEASANTS, was rendered without the participation of this member, who did not sit; thereafter motions for rehearing by both sides therein were filed and orally argued before the full court as then constituted, which was prior to the accession of Associate Justice CODY; still later, that is, on June 24 of 1937, after Justice CODY'S service had begun and at his request, counsel for both sides accommodatingly reargued the motions before the present court, all members sitting.

After such mature consideration, the court now determines that the former reversal cannot be adhered to, nor the full opinion then handed down indorsed, but that the appellee's motion for rehearing should be granted and the trial court's judgment in her favor affirmed, in the main upon these controlling considerations:

(1) The statement in the former opinion down to and inclusive of its overruling of appellants' first assignment of error is acquiesced in, with the exception that it is now concluded that appellants' third assignment should have been considered under amended R.S. art. 1844 (Vernon's Ann.Civ.St. art. 1844), none of the further holdings being adopted.

(2) Neither is it agreed that the defects in the record-showing as to authority in the administrator of Eliza M. Hill to execute the deed to S. L. S. Ballowe, under which the appellee claims title to the land in question, can be considered fatal at this late date. The application to make the sale was filed April 1, 1856, the order of sale was made April 2, 1856, the report of sale was filed August 27, 1856, the confirmation was made on the same day. Appellee introduced in evidence the oath and bond of the administrator filed and approved in December, 1857. While the doctrine of stale demand is not applied in the Texas courts, and would not be applicable in this instance if it were, because appellants do not connect themselves with the interest of Eliza Hill, yet our courts do hold: "All reasonable presumptions will be indulged in favor of these ancient deeds that everything necessary to be done to perfect the sale was properly done if nothing appears to impeach its fairness. Pendleton v. Shaw, 18 Tex. Civ. App. 439, 44 S.W. 1002; see, also, Baker v. Coe,20 Tex. 429."

It is not pretended that the consideration given the administrator was not a fair and adequate one. In Rindge v. Oliphint, 62 Tex. 682, the court said:

"There was evidence tending to show that Frances Oliphint had never qualified as administratrix of the estate. Letters of administration, it appears, were duly issued to her, and the evidence indicates that she acted and was recognized by the probate court as the duly authorized administratrix of the estate, and the defendants in their pleadings allege that the estate is still open and that she is the administratrix. Her authority cannot be collaterally called in question concerning acts done by her under such circumstances. Poor v. Boyce, 12 Tex. 440, 449.

"The purchaser is not required to go behind the order of probate sale to see that the administrator has been duly appointed and continued, and that the proceedings have all been regular. Dancy v. Stricklinge,15 Tex. 557, [65 Am.Dec. 179]; Bartlett's Heirs v. Cocke, 15 Tex. 471, 478; Poor v. Boyce, supra; and see Peterson v. Lowry, 48 Tex. 408."

After so great a lapse of time it would be impossible to supply the evidence necessary to cure such defects. But that such evidence once existed is hardly to be questioned, for those to whose interest it would have been to assert an invalidity in the proceedings can hardly be supposed to have foreborne doing so, unless they were aware that there was evidence showing the sale to be valid. Certainly in a collateral proceeding, after so great a lapse of time, it would at least require strong affirmative proof that the judicial sale was not one in fact. Here the evidence relied on is negative, that the administrator — the husband of the deceased — acting under orders of the court, had not qualified. The presumption is rather the other way, that there had been an earlier oath and bond filed in the case.

(3) The appellee — claiming the 156 acres immediately under Mrs. M. C. Mateer, who died March 4 of 1923, over whose estate no administrator nor executor had been appointed or qualified within one year — relied upon the record title from the sovereignty of the soil down through Mrs. Mateer and into herself, while the appellants sought to establish as their defense adverse possession of it under the 10-year statute of limitation (Vernon's Ann.Civ.St. art. 5510).

It seems clear from the evidence as a whole that appellee established this claimed record title in herself, either to the whole of the tract, or at least to a seven-eighths interest therein; while, on the other hand, the appellants wholly failed to show in the facts that they had any record title to any part of the land, or were in any way connected with any such a title, but were as a matter of fact asserting title in themselves by virtue of the statute of 10 years' limitation, based upon a claimed possession of it for that long by old Tobe Caldwell and his heirs, which possession — claimed as having been prior — they further asserted gave rise to a presumption of law in their favor that they had acquired an alleged outstanding title in a part of the land that did not go into the appellee's relied upon chain.

(5) The appellants, thus having no other title of any sort, as a matter of fact, never succeeded either in maturing any actual title by virtue of their claimed possession under old Tobe Caldwell, but always remained in the status or category of being mere claimants to a title by limitation under that possession, hence, as against the established record title of the appellee, which, subject to their first two assignments that have been overruled, they admit amounts to an undivided three-eighths interest in the 156 acres, were strangers, or naked trespassers, only.

(6) If, as held supra, the objections made to appellee's record title as a whole are unsound, and if it further affirmatively appeared that the appellants, on their side, had no title to any part of the land of any sort that was not referable to their claimed possession down under old Tobe Caldwell only, as has also just been determined, then it follows from well-settled authorities that, as the admitted holder of an undivided three-eighths interest in it, the appellee was entitled to recover the whole of the land against them. Croft v. Rains, 10 Tex. 520, 523; Presley v. Holmes, 33 Tex. 476; Alexander v. Gilliam, 39 Tex. 227, 228; Hutchins v. Bacon, 46 Tex. 408; Ney v. Mumme, 66 Tex. 268,17 S.W. 407; Pilcher v. Kirk, 60 Tex. 162; Padgett v. Guilmartin,106 Tex. 551, 172 S.W. 1101; Telfener v. Dillard, 70 Tex. 139, 7 S.W. 847; Taylor v. Higgins Oil Fuel Co. (Tex. Civ. App.) 2 S.W.2d 288; Plowman v. Miller (Tex. Civ. App.) 27 S.W.2d 612; Duncanson v. Howell (Tex.Com.App.) 222 S.W. 232.

(7) Irrespective of where the burden lay upon that feature, which this court does not think was upon the appellee, the appellants' own pleadings and proof — beginning with old Tobe Caldwell's affidavit to having entered upon this land with the objective of "homesteading" it by limitation — conclusively if not undisputedly showed that their sole claim to any title was under the 10-year statute of limitation, based alone upon the occupancy of that old negro and his descendants; this appears most directly from the testimony of J. M. Frost, Jr., brother of appellant C. M. Frost, who said he had made all the investigations for his brother with reference to the claims of all these negroes to title to this land by limitation, and that he knew the appellee owned and had record title to it, having himself approached her about leasing it; the appellant himself testified to having tried to buy the property from every one who was claiming it, except the appellee, putting all of the instruments in evidence upon this trial which he had so obtained affecting it, none of which, however, emanated from sources other than the same possession under Tobe Caldwell.

(8) These developed facts clearly differentiate this case from those cited by the appellants as giving rise to a presumption of title from prior possession — that is, instances where a prior possession is either unexplained, or grounded upon some right or interest not inconsistent with such a presumption; in other words, there was in this instance a complete explanation and disclosure of just what the possession here depended upon was, to wit, nothing but the naked occupancy of old Tobe Caldwell that never ripened into any title at all. Wiggins v. Hensley (Tex. Civ. App.) 90 S.W.2d 572; Lynn v. Burnett,34 Tex. Civ. App. 335, 79 S.W. 64; Robertson v. Kirby,25 Tex. Civ. App. 472, 61 S.W. 967, where the rule is thus stated:

"The question of law to be determined then, is, was the presumption of title arising from prior possession rebutted by the facts above stated? The learned district judge held that it was, and we are constrained to adopt the same view. The case is distinguishable, we think, from House v. Reavis, 89 Tex. 626, 35 S.W. 1063, Watkins v. Smith,91 Tex. 589, 45 S.W. 560, and that line of cases, and seems more analogous to Bates v. Bacon, 66 Tex. 348, 1 S.W. 256. * * * Since the title under which possession was taken by the grantor of plaintiff in error was fully exhibited, and was affirmatively shown, as found by the jury, not to be a title to the land in controversy, the evidence of title which possession unexplained affords was rebutted, and no presumption arose that ``an independent outstanding title' had been acquired." See, also, McCarthy v. Houston Oil Co. (Tex. Civ. App.) 221 S.W. 307, and Houston Oil Co. v. McCarthy (Tex.Com.App.) 245 S.W. 651; Butler v. Borroum (Tex. Civ. App.) 218 S.W. 1115, and Bates v. Bacon, 66 Tex. 348,1 S.W. 256.

For the reason already given — none of the objections against the appellee's record title as an entirety being good — in view of the indisputable fact that she showed herself to be such owner of a large undivided interest in the land, conceded by appellants, in the stated contingency, to be as much as three-eighths thereof, while they themselves were strangers to any interest, it is deemed unnecessary to further construe or interpret the several deeds from grandchildren of Harriett George to C. C. Morse, which constitute the subject-matter of their third assignment of error, as copied in this court's former opinion, than to hold them not void for want of description of the interests undertaken to be conveyed, but rather to have apparently been intended to convey all their respective interests in the 337 acres therein referred to, especially as the evidence in that connection showed they had always subsequently recognized such full interests to be in their grantee.

(9) The learned trial court was correct in holding — presumptively, at any rate — that the deeds from Hubbard to Walker, and from Walker back to Hubbard, broke the limitation and adverse claim by Tobe Caldwell and those so holding under him, but learned counsel for appellants is mistaken in asserting the record to further show that the trial judge did not also consider the prior deed of Caldwell to Hubbard likewise as constituting such a break; counsel in his final written reply to appellee's arguments credits the trial judge with "suggesting that, because of the agreement between Caldwell and Hubbard, at the time of the deed, such deed did not constitute a break of adverse possession"; the bill of exceptions fails to disclose such a holding as to this prior deed, or the giving of the quoted reason therefor by the court; wherefore, it must still be presumed upon the appeal, if that be necessary in support of the judgment rendered below, that the trial court considered both of the deeds referred to as alike constituting breaks in the Tobe Caldwell possession; in any event, this court so considers them supporting that view by the citation of such authorities as these: Cocke v. Texas N. O. Railway Co., 46 Tex. Civ. App. 363, 103 S.W. 407; Daugherty v. Manning (Tex. Civ. App.) 221 S.W. 983 (writ of error dismissed for want of jurisdiction); Gibbs v. Lester (Tex. Civ. App.)24 S.W.2d 527, and Id. (Tex.Com.App.) 41 S.W.2d 28, 80 A.L.R. 431.

Furthermore, since these two deeds were absolute in terms upon their faces, the parol testimony offered by appellants, through one of their number, of a conversation had between himself and Hubbard, the grantee in such deed from Tobe Caldwell, to the effect that Hubbard was to hold the title to the land thereby conveyed to him by Caldwell as trustee for both themselves and another, and which the trial court specifically admitted tentatively only, subject to appellee's objections, was clearly banned by her specifications then made that the conversation was both pure hearsay and a self-serving declaration seeking to impose a parol trust upon a deed absolute on its face, as between the parties themselves claiming thereunder. Butler v. Duffey (Tex. Civ. App.) 288 S.W. 598, 599.

It seems to be mutually conceded by both parties that, if either of the deeds just referred to interrupted the possession under the limitation claim, no title thereunder matured, hence that feature need not be discussed; this court is further convinced, however, that in another essential respect the limitation claim under Tobe Caldwell's possession could never have matured a title, and that is the conclusive, if not indisputable showing, that the old negro entered upon this land as the tenant of Mr. Ben Reisner, under the belief of both of them that it constituted Mr. Reisner's own property; that neither of them discovered the contrary until the surveyor, Gillespie, demonstrated to them in February of 1924 that the land on which old Tobe had lived up to that time under such mistaken belief in fact did not belong to Mr. Reisner, but to the mother of the appellee herein; wherefore, under such indisputable showing from the evidence herein, considered as an entirety, Tobe Caldwell's possession — especially under his own declarations to Mr. Reisner and many others — never became, until after the date of that survey, if ever, in any sense adverse to the claim of appellee's predecessor in title.

Further discussion being deemed unnecessary, it is held that none of appellants' assignments should be sustained, that the appellee's motion for rehearing should be granted, the former reversal set aside, and the judgment of the trial court affirmed; it will be so ordered.

Rehearing granted, reversal set aside, trial-court's judgment affirmed, Chief Justice PLEASANTS dissenting.