Hutcheson v. Massie , 1911 Tex. App. LEXIS 1275 ( 1911 )

HALL, J.

Appellants herein, as the heirs of Dr. Joseph Jones and wife, filed this suit in the form of trespass to try title, against appellee, to recover section 109, in block 1, in Floyd county. Appellee, claiming under G. W. Haxton, answered by general denial, plea of not guilty, and pleaded the statutes of limitations of three, five, and ten years. There was a verdict for defendant, and from the judgment based thereon the appellants bring the case to this court for review.

[1] The first, second, and third assignments of error complain of the action of the court in admitting the testimony of the witnesses Jerry Haxton and Louis A. Layman, and reference to the bills of exception upon which these assignments' are based show that the objections were urged to seven direct interrogatories and one cross-interrogatory, with the answers to each propounded to Jerry Haxton, and to practically the greater part of the deposition of the witness Louis A. Layman. The objections were that the testimony was irrelevant and immaterial, and was incompetent to prove the execution and delivery of the deed to land, and that the evidence did not identify the land in controversy as having been included in the deed, and that the evidence was hearsay. It is a well-settled rule of practice that an objection to evidence should be overruled if any part thereof is competent and not subject to the particular objection urged. Reference to the bills of exception shows that the deposition of each of these witnesses contained testimony properly admissible; and, since the objections do not specify, and the assignments of error and statements following the same do not point out the particular part of the evidence complained of, the assignment must be overruled. Martin v. Ince, 148 S. W. 1178; Campbell v. San Antonio, M. & S. Co., 133 S. W. 751; Davis v. Mills, 133 S. W. 1064; Sun Mfg. Co. v. Egbert, 37 Tex. Civ. App. 512, 84 S. W. 667; Field v. Field, 39 Tex. Civ. App. 1, 87 S. W. 726.

The fourth assignment of error attacks the ruling of the court in permitting the witness Samuel Robison to detail a conversation between himself and C. W. Haxton, in which the said Haxton told the witness that he had some land in Texas that he had acquired from Dr. Jones, and he believed he could sell or dispose of it in some way, and in order to prove that he was not joking about the land, he could show witness the deed to same, and that Haxton went to his papers and took out a paper, which he handed to witness with the remark that it was the deed to the Texas land; that witness could not verify this because he did not have his glasses. This evidence was introduced to show title and the existence of a deed from Jones to C. W. Haxton.

The sixth assignment complains of the ruling of the court in permitting the witness Marvin T. Chase to testify that C. W. Hax-ton told him that he went to Texas about the year 1877 or 1878, and the eighth assignment complains of the court’s ruling in permitting the witness, Angie Idol to testify to the same effect. It appears from the record that these witnesses were each testifying to statements made by C. W. Haxton, deceased, with reference to his title to the land and the existence of a deed. It does not appear anywhere that Haxton was ever- in actual possession of the lands, either in person or by tenant, and no deed from Joseph Jones and wife conveying the land to him has ever been placed upon record; and, the existence of the deed being denied, no constructive possession is shown. We think the statement of C. W. Haxton to said witnesses as to his ownership of the land and as to his having a deed from Jones are hearsay.

In McDow v. Rabb, 56 Tex. 155, the court said: “Ordinarily, whenever it becomes important to prove that a man did any act, whatever he may have said about the act while it was being done is admissible as a part of the act. 1 Greenl. 108, 109. But this rule should not be unnecessarily extended, as it may enable a party to make evidence for himself in the absence of his adversary,” and the court sustained the trial judge in excluding declarations of one Gates, to the effect that he had bought the lands from Rabb.

In the case of Mooring & Lyon v. McBride, 62 Tex. 309, it was necessary for appellees, in order to recover, to prove that one Baug-uss was the owner of the land at- the time they purchased it under the execution against him, or that he had some interest therein, subject to execution, which passed by the sale at which they purchased. This they attempted to do by proof of declarations made by Bauguss while he was in possession of the land. The sole purpose for which the declarations were admitted, in so far as they related to the execution of a title bond by Blaydes to Bauguss, was to prove title in Bauguss. Stayton, associate justice, said “that the declarations of one in possession as against those who claim through him may be used for certain purposes is well settled. Thus were this an action by the appellees, who hold by deed directly from Blaydes, it would be admissible for them, in an action against one claiming through Bauguss, to-prove the declarations of Bauguss, made while in possession, that he held through an executory contract made with Blaydes, and so, for the purpose of proving that Bauguss did not assert a title in fee to the land, and to show the character of claim he did assert. * * * But, we know of no case in which such declarations were admitted for the purpose of showing title in the declarant.”

In Gilbert v. Odum, 69 Tex. 670, 7 S. W. 510, the court uses this language: “It is insisted that there was error in refusing to admit the testimony of F. C. McReynolds, ■offered both before and after the deposition •of Louis King had been read by defendants, to the effect that about the time of the purchase of said property, and also when Louis King was in possession of the premises, he informed the witness that he furnished the money, and that the property was purchased for him. This assignment is predicated on .plaintiff’s third bill of exceptions, from which it appears that he proposed to prove the admissions and declarations of Louis King to MeReynolds; but it does not appear what .the declarations and admissions were that the witness would testify to, and therefore it is impossible for us to know whether material or not, if otherwise unobjectionable. But if the bill of exceptions was sufficient, it is not perceived for what purpose the declarations of Louis King, while in the possession of the premises or at any other time, were offered in evidence, except as tending to .prove title in himself, for which purpose they were not admissible. * * * Nor would the fact that said Louis King had testified in the case at the instance of defendants make his declarations, which were otherwise incompetent, admissible in evidence.”

The claim under which real property is being held by a declarant may be shown by ■declarations indicative of a relevant animus. But the declarations are incompetent as direct evidence of the facts asserted, for as to the general history of the declarant’s title in favor of his privies, as to the facts asserted, the declarations are hearsay. 16 Cyc. 1166-1168. In view of another trial, it is proper for us to state that testimony of a like character, found in the depositions of Jerry Haxton and Louis A. Layman, should be excluded upon proper objections, if offered to prove title in appellee or to prove possession of a deed from Jones.

[2] Appellants by their ninth assignment of •error attack the action of the court in permitting the introduction in evidence of a certified copy of the notary’s record, which •shows that on January 14, 1878, Julius Boyar, a notary public of Dallas county, took the acknowledgment of Joseph Jones, and on the 28th of the same month took the acknowledgment of Ann E. Jones to an instrument in writing. These further facts appear from the certified copy. “Location of land and •original grantee, Eloyd county; H. A. & J. L. King. Name and residence of grantee. C. W. Haxton, Attica, Ind.” Appellants objected to the certified copy, because it did not refer to and identify the land in controversy; was not even a circumstance showing the ■conveyance of or the acknowledgment of any ■conveyance of the land in controversy; that the land in controversy is section 109, patented to H. A. & J. L. Cagle, original grantee, Adams, Beatty & Moulton, and the certified ■ copy describes the land as situated in Floyd county, and gives the name of the original grantee as H. A. & J. L. King, all of which ■objections were overruled. Appellee, in connection with this certified copy, introduced evidence tending to show that Joseph Jones had previously purchased section 109, in block 1, in Floyd county, together with other lands, and introduced evidence showing conveyances of all the lands so purchased by him except section 109; that there was no such original grantee to any land as H. A. & J. L. King found in Floyd county; that Jones had paid no taxes upon section 109 since its sale; had never occupied it, nor exercised any act of ownership with reference to it. It being the settled law of this state that the execution and contents of a lost deed may be established by circumstantial evidence (Bounds v. Little, 75 Tex. 316, 12 S. W. 1109), we think this testimony was admissible as a circumstance in connection with other evidence introduced by appellee, tending to show the existence of the deed as claimed by him. The court did not err in excluding the evidence relating to appellee’s tax deed and the cross-assignment is overruled.

Since by reason of the errors pointed out it is necessary to reverse the judgment and remand the cause for another trial, it is not proper for us to discuss the sufficiency of the evidence to sustain the verdict and judgment, and for this reason we do not pass upon the eleventh assignment of error.

For the errors pointed out, the judgment Is reversed and the cause remanded.