Moses v. Chapman , 280 S.W. 911 ( 1926 )

The first proposition of the appellant, based on proper assignments of errer pertains to the proof of title to the land, offered and relied upon by the plaintiff in the case, Joseph A. Chapman. The power of attorney from Samuel Dyer to H. H. Haynie to sell and dispose of the land certificate issued to George Dyer, of date October 7, 1858, recites that he (Samuel Dyer) is "the father and sole heir at law of George Dyer, deceased," and also the conveyance of the land certificate to Chester A. Bulkley by Samuel Dyer by his attorney in fact, H. H. Haynie, of date December 6, 1858, recited the same thing. It is urged that the recital of "father and sole heir at law of George Dyer, deceased," is not competent evidence of the heirship of the grantor, and that heirship independent of the recitals should have been shown by the appellee. There is no evidence outside of these two instruments mentioned showing who were the heirs of George Dyer, deceased. Neither is there any evidence, or even slight circumstances, showing, or tending to show, that Samuel Dyer was not the father and sole heir of George Dyer. The instruments containing the recitals are more than 65 years old, and both of them have been filed in the clerk's office in Titus county, where the land is situated, and in the state land office, since a few months after their execution. During the 65 years of the existence of the duly registered instruments, and to the time of the trial, no person or persons have ever asserted any claim of any kind so far as this record shows, to the land, claiming to be heirs of George Dyer in contradiction to the recital that Samuel Dyer was "the father and sole heir at law of George Dyer, deceased." Acts of ownership of the land have been exercised continuously by those claiming under the instruments without being disputed by any one. It is believed that in the particular state of the record the fact of heirship stated in the conveyances mentioned was competent presumptive evidence of the fact, and that the court was authorized to presume and find as a fact the fact of heirship. Such recitations, in view of the age of the instruments, would constitute prima facie evidence of such heirship, in the absence, as here, of anything to rebut the presumption. Fulkerson v. Holmes, 6 S. Ct. 780, 117 U.S. 389, 29 L. Ed. 915; Ardoin v. Cobb (Tex.Civ.App.) 136 S.W. 271; Maxson v. Jennings, 48 S.W. 781,19 Tex. Civ. App. 700; Fielder v. Pemberton, 189 S.W. 873, 136 Tenn. 440, Ann.Cas. 1918E, 905. The purpose for which such documents, classed as ancient instruments, have been received in evidence, in the proper case, is to prove matters, among other things, of pedigree and heirship. 22 C.J., at p. 947. In Maxson v. Jennings, supra, the court clearly stated that —

"The deed from Henry Levenhagen recites him to be one of the heirs, and to possess power from the others to convey their title. There is no evidence outside these papers showing who were the heirs of the decedent, and ordinarily a recitation of the fact in such a deed would not be evidence of heirship against any one except parties thereto; but the lapse of time, coupled with acts of ownership on one side, and the nonassertion of any opposing claim on the other, authorizes the court to presume and find, as a fact, not only the fact of heirship recited, but competent power in the grantor from the other heirs."

Of course, the rule is well understood that, although the deed is an ancient instrument, the presumption of ownership would not obtain, in case there is evidence tending to contradict the presumption arising from the recital in the deed.

The point made on the appeal of the warrantors is that the court erred in rendering judgment in favor of George Lilienstern and H. B. Wilson against John Hargrove on his covenant of warranty for only the sum of $550, being one-half of the full obligation. The amount stated in the judgment was on the assumption that John Hargrove, being a joint maker of the deed with T. R. McLean, was liable for only one-half of the obligation. This was error, as John Hargrove was jointly and severally liable on his covenant of general warranty, and it should have been so determined. His obligation as a joint vendor extended to the entire title, and there are no words of severalty in the covenant of warranty. The deed conveyed in terms the land itself. A covenant of general warranty is not legally different from a simple joint promise, where each is liable to the promisee for the whole debt. Baum v. McAfee, 125 S.W. 985,59 Tex. Civ. App. 55.

It is contended in the appeal of the administrator, W. P. McLean, Jr., that any judgment against him as administrator was invalid and erroneous. A claim of this character on a warranty is a claim against the estate when so adjudicated, and not a claim until so adjudicated. The district court has the right to determine the liability in the first instance, without first having it presented to the administrator and allowed or refused by the probate court. It is not such character of claim that can be presented to the administrator and the probate court until a liability on the warranty is first established. Of course, the judgment would have to be certified to the probate court. The administrator was made a party to the suit upon the express allegation that he "is made a party to this suit as the administrator of the estate of Thomas McLean, deceased." The administrator did not deny the fact alleged, or offer to show to the contrary, and he appealed as administrator, in effect affirming that he was such and acting as such. The judgment, however, against him in favor of George Lilienstern and H. B. Willson for $550 must be held error, in view of their pleadings, and therefore should be reformed in that respect.

The appellant John Hargrove is entitled to a judgment on his pleadings against the estate of T. R. McLean, deceased, for one-half the amount he is required to pay unto George Lilienstern and H. B. Willson, and it was error not to allow him such recovery.

The judgment will be in all things affirmed as to appellee, Joseph A. Chapman; and the judgment will be reformed as to John Hargrove so as to allow a recovery against him on his warranty in favor of George Lilienstern and H. B. Willson for $1,100, instead of $550, and in his favor on his cross-action against the estate of T. R. McLean for one-half the amount he is required to pay George Lilienstern and H. B. Willson not to exceed $550, and the judgment will be reformed as to W. P. McLean, Jr., administrator, so as to disallow a recovery against the estate by George Lilienstern and H. B. Willson, and the judgment as to such administrator after the above modification to be in all things affirmed. Costs of appeal to be taxed against H. B. Willson, John Hargrove, and George Lilienstern.

Reformed and affirmed.