Magee v. Paul , 1913 Tex. App. LEXIS 1404 ( 1913 )

When the opinions of Justice HALL in the above case, on the motion for rehearing, were under consideration, the writer was absent during the latter part of the week before the Saturday, May 3d, at which time they were handed down, being present, however, the day of their rendition; but since the delivery of said opinions and the opinion by Chief Justice HUFF in this cause, upon a reconsideration of the record in this cause, I am of the opinion that the judgment of the lower court should have been affirmed, and to that extent I dissent from the Chief Justice, who agrees with Justice HALL that this cause should be reversed and remanded, the former disagreeing, however, from the latter as to the admissibility of certain testimony, the opinion of each reflecting their views upon the issues involved and indicate their divergence in the application of the law upon the subject.

From the statement of the case I refer to the preliminary part of the original opinion of Justice HALL and will not attempt to distinguish the points of difference, except to write my views to the extent of a review of the testimony and an attempted application of the law thereto, why I think the motion for rehearing in this cause should have been granted. The opinion of Chief Justice HUFF in this case, who agrees with Justice HALL to that extent, sharply raises the question of the sufficiency of the proof of title and ownership, under the circumstances of this record, of the original certificate in Parry, who is still alive. And according to my views of the case I believe it to be the crux of the whole matter; however, in determining this question, a review to a certain extent of other matters, in connection therewith, and of the evidence relevant to other features of the title, bear upon the question of the sufficiency of the proof as to title in Parry. As was said by Justice Gaines, in the case of Davidson v. Wallingford, 88 Tex. 624, 32 S.W. 1032, although the facts there are some different from the circumstances here: "The broad question to be determined by the jury was," Did Parry "become the owner of the certificate? And this was to be determined from the circumstances established by the evidence."

If Parry had the title to this certificate — which I will revert to later — I think it is conclusively shown that he transferred the same to Albert; that the original certificate was destroyed; that Parry made a presentation of proof and sufficient claim of ownership to the Commissioner of the General Land Office for the purpose of obtaining a duplicate certificate and the state patented the land; that he caused the certificate to be located upon the particular land in controversy; that prior to patent he transferred the same to J. S. Daugherty; and that the present appellees, through successive conveyances from Daugherty, are the holders of whatever title Albert possessed. A reading of the statute with reference to the duplication of certificates based upon the loss or destruction of original certificates clearly indicates that it is the duty of the Commissioner of the General Land Office, within the scope of that statute, to deliver the duplicate certificate (if no controverting claim of any opposition holder has been made to him) to the claimant who proves ownership and loss of the original certificate, and who registers sufficient evidence of title satisfactory to said Commissioner of his claim of said original certificate. Evidently this was done by Albert. While it is not direct proof of title, it is a notorious act by Albert with reference to a claim of title and at a time when the evidence shows that he was in possession of such certificate.

The appellant in this cause introduced testimony which proves the location of the duplicate certificate by Albert; and the transfer in writing by Albert to Daugherty of the duplicate certificate after location, although before patent, and being an instrument over 30 years of age, recorded in the records of Baylor county, at a time when it properly could be recorded in that county, of course conveyed whatever title Albert had, and in 1885 the grantee, J. S. Daugherty, obtained a judgment against Gibson in the district court of _____ county (void it is true, on account of the death of Gibson), but reciting a recovery against the latter of the land in controversy — a notorious and public act upon the part of Daugherty of a claim of title by him at a time when he was in possession of the duplicate. And J. C. Paul, who is a tenant in common with Rogers, and the appellees in this suit, has been paying the taxes upon this property since 1905. There is no direct proof of the payment of taxes upon the land prior to that time, no evidence that they had been paid or unpaid, unless the circumstance of the approval of said title by the attorneys of Paul upon examination of same would constitute such proof — weak, however, if competent for that purpose — but it is conclusive that none of the Gibson heirs have ever paid any of the taxes upon this property, and P. C. Gibson, a man 50 years of age, and a son of John A. Gibson, on account of his age at the time his father earned the certificates in question by his services to the state, of course has no intelligent recollection, as he testified, in regard to these matters; but did state that on investigation of the records at Austin in later years he found that the records show that certificates to 1,000 or 1,100 sections of land had been issued to his father, but that he did not make a thorough investigation to the lands patented by virtue of such certificates, and the evidence shows his direct attention was called to the condition of this title just a short time prior to the institution of this suit. And the evidence is conclusive of an entire absence of claim since the father's death in October, 1877; several of the children and heirs ranging from 48 to 61 years of age, including their mother, and the wife of Gibson, now something over 80 years of age, being still alive, and several of the children testifying in this cause. The testimony in the case exhibits an enfeebled condition of the mother, varying some, however, as to the present strength of her mind; one of the married daughters stating: "Her physicial condition is very good. * * * Her memory is not strong and clear, but she understands." The record is that John A. Gibson died intestate, no evidence, however, of any administration, and hence no testimony that these certificates were ever inventoried as an asset of the Gibson estate, if he had any, at the time of his death. Mr. Paul testified that his grantor delivered to him the original patent for this land when the deed to him and his cotenant was delivered.

The appellants introduced the testimony of Parry, which they had taken, to the effect that he had sold certificates to Edward White and Stephen Albert, inferable as an occurrence some time in the years 1874 or 1875, and that during this period he sold as many as 500 certificates, having testified previously that he had bought and sold only the original certificates. It is true that the record shows that this particular testimony of Parry, as to the sale of certificates to White and Albert, that Parry then stated he did not recollect the numbers, but there is the following testimony, in another deposition, taken prior to that time, which, as against the incomplete and insufficient objections made by appellants, I am unable to see any real controversy as to its admissibility (it can only go to the weight and credibility, which we are unable to consider as against the judgment of the trial court) addressed to the identity of the certificate as well as to the sale of same by Parry to Albert, and which I set out in full as follows:

"Cross-Int. No. 3. Q. Isn't it a fact that you are not positive as to the numbers of certificates that you did sell, if you ever sold any, to Stephen Albert, or to any one else, and isn't it a fact that you have heretofore made affidavit to the effect that you did not know personally as to these facts, and that you had no data from which to testify? Date of affidavit, July 3, 1876. A. I am positive as to the numbers of the certificates sold to Stephen Albert and Edward White. I did not make such an affidavit as you describe, but I did state in an affidavit dated July 3, 1878, that to the best of my recollection the numbers as set forth by me were correct, but, after consideration and reflection, I am positive that the numbers as stated by me, of the certificates mentioned, are correct, and I know same to be so."

"Defendants' bill No. 8: (1) When this answer was offered in evidence the defendants objected to the part of it which read, ``I did state in an affidavit dated July 3, 1878, that to the best of my recollection the numbers as set forth by me were correct,' because that part of the answer is not responsive to the question. (2) The defendants further objected to the part of said answer which read, ``But, after consideration and reflection, I am positive that the numbers as stated by me, of the certificates mentioned, are correct, and I know same to be so,' because that part of the answer is not responsive to the question and is an opinion and conclusion of the witness."

I believe the first objection, upon a careful consideration of the record, is untenable. It is true that the question says in effect, Isn't it a fact that in the affidavit of July 3, 1876, you have heretofore stated that you didn't know personally as to the numbers of the certificates that you did sell to Stephen Albert, and that the answer refers to an affidavit of July 3, 1878; but the reading of the affidavit of July 3, 1878, and it being the only affidavit in this record that it is shown that Parry ever made, is clearly the one intended to be referred to by appellants. And, if so, the answer of Parry is responsive to the question; and there is no objection to the other answer of Parry that he is positive as to the numbers of the certificates sold to Stephen Albert and Edward White, and the second objection urged therein is clearly frivolous. It seems to me that this testimony, properly considered, reaches some distance in this case against the appellants who elicited this testimony, but who objected to its introduction (which probably they had the right to do); however, as they were inquiring as to the number of the original certificate Parry had sold to Albert and the further inquiry, if it were not a fact that he did not know personally as to the fact of the number of this certificate and the sale of same, and that he had made affidavit to the effect that he did not know personally as to these facts, which with this connection with the affidavit inquired about, with the answer thereto, as to the matters attempted to be elicited, makes the affidavit original testimony. This, with the affidavit of Parry, having been offered to the Commissioner of the General Land Office as a part of the evidence of Albert's title to the original certificate, for the purpose of obtaining the duplicate certificate, in lieu of the former. Chief Justice HUFF, in this cause, has pointed out the change in the law, as to the party in whose name the duplicate certificate is issued — at the time this one was issued the duplicate could have been issued in the name of the claimant, which was, however, issued in the name of Gibson, and a short time thereafter amended to the extent of making it the duty of the Commissioner of the Land Office to issue the duplicate to the claimant, however, in the name of the original grantee, and upon this point arguing the admissibility of the affidavit of the claim of ownership in Albert for the purpose of rebutting the prima facie presumption that might otherwise prevail on account of the issuance of the duplicate in this case directly to Gibson, and with reference to which position I understand Justice HALL agrees.

This affidavit of Parry's referred to by him upon inquiry by appellants was admissible to the Commissioner of the General Land Office on account of the loss of the transfer accompanying the original certificate and admissible in this case on that account in a limited sense; hence I revert to the decision of the Chief Justice and Justice HALL in this cause as to the insufficiency of the evidence of ownership of the original certificate in Parry, and the title in him, which necessarily carries with it the sufficiency of the proof through Parry of a divestiture of title and ownership out of Gibson — to my mind the strongest position which can be assumed in this record, arguing the failure of the plaintiffs in establishing their title in the trial court, appellees here. The existence of Parry weakens the testimony in this respect, out I am unable to derive the conviction from the authorities that it is a prerequisite — it is an incidental going to the weight of the testimony. I think the proposition is: Is the evidence sufficient, upon the whole record as an original question, to prove that fact? It is conclusive that Parry had possession of the original certificate; his sale and delivery established that fact; there is a successive and continuous claim of ownership through Parry from Gibson of the certificate; there is no claim of this original certificate by any of the Gibsons for over 35 years; there is no imputation addressed to a candid mind as evidence that Parry stole or forged it. It is common knowledge that in the early history as to transactions involving the transfer of these certificates, being mere chattels, they passed from hand to hand, often by a blank indorsement of the original owner to be filled in by the grantee, and, as expressed by Justice Head, in the case of Fisher v. Ullman, 3 Tex. Civ. App. 325, 22 S.W. 524, "the possession by Ferguson of the certificate with the blank indorsement thereon prior to its location, and that he thereafter had it located, unexplained, was prima facie evidence of title in him"; the same judge further saying in the same case, "That actual possession of personal property is prima facie evidence of ownership seems to be the rule everywhere." It is true that a charge to a jury in the language of this latter statement would be improperly casting the burden of proof and also be upon the weight of the evidence, and the fact of the possession may not of itself, strictly speaking, constitute prima facie evidence of title, but inherently it is a strong circumstance of title when connected with other facts.

Of course, the lack of a blank indorsement, the existence of Parry, whose testimony in this record is not as complete as it should be, and the lack of a written transfer of some kind, are circumstances in favor of appellants. But, on the other hand, we have this man dealing with this certificate as his own, and as to which the evidence is conclusive, taken in connection with his business of dealing in land certificates, having handled several hundred original certificates within the outside period of two years, and during which time Albert came into possession of the certificate from him, and in connection with his assertion which I am now convinced, with the Chief Justice, is a statement of a fact, that he sold certificate No. 16 to Stephen Albert in due course of trade, and received from him the value thereof at the time, and delivered same to him at his place of business, and in connection with the pertinent circumstance in this record of a lack of assertion of any claim by any one else for over 35 years, no evidence in this record of any declaration of claim of ownership of any other person during that period, which with the original patent in the possession of the present owner of the land and the notorious claims of ownership evidenced in this record, by the parties to whose title the appellees succeed — I am inclined to think all this is sufficient testimony upon which to predicate a finding of ownership and title in Parry, which conclusion necessarily carries with it the divestiture of title out of Gibson. Gibson is shown to have died in October, 1877, some two years after the time Albert is shown to have acquired title to the original certificate; no claim having ever been asserted by him.

In the case of Huff v. Crawford, 89 Tex. 220, 34 S.W. 609, a certificate was issued to Garner, who had indorsed the transfer of the same to Myrick, dated the 8th of June, 1838, and in September, 1872, one Cornelius had possession of the certificate with an appropriate transfer from Garner, who also had the land located and patented; and the question of the ownership of this certificate between the heirs of Myrick and the vendees of Cornelius were in issue, the proposition of delivery or nondelivery to Myrick being the real question in the cause, and Justice Brown said: "The fact that the certificate was found in the possession of Cornelius accompanied by a claim of ownership, the location and survey of the land for Cornelius, his claim of ownership and sale of the land after location, the taking possession by his vendees and the payment of the taxes thereon, connected with the absence of any claim to the certificate or the land made by the heirs of Myrick for the time shown, were circumstances from which a jury might have found that the delivery of the certificate and transfer was never made, either actually or constructively, to Myrick. This testimony made an issue of fact which should have been submitted to the jury, and it was error for the court to assume the existence of a fact thus controverted." I do not mean to say that this case, on the facts, is wholly analogous, as each opposing party in the cause seems to have had a written transfer, which, however, might have balanced each other; but it is pertinent to some of the elements, and especially to the matter of nonclaim during a long period of time, where there is a belated assertion of title by heirs or others, as against the one in possession of the certificate, and which seems to be considered as a potent circumstance by numerous decisions, where the fact arises. In reading the authorities, I am unable to deduce any certain rule as to prerequisites of the proof of the title and ownership of land certificates, creating the presumption of the grant of this character of interest from the original owner. The only rule, if any exists, as to the quantum of this proof, when it is referred to the matter of sale of the chattel itself, is one that the sale and transfer of this character of personal property is analogous to the requirements of the proof of the transfer of any other personal property — perhaps not wholly so, but difficult to determine the distinguishing difference. I would think that a man who was dealing in horses to the extent that he sold some 500 of them during a period of two years, and the evidence of possession by him of one of that number, and the sale of same to a third party, without a bill of sale, coupled with the vendor's possession, and the continued ownership of vendees, without any complaint for a considerable length of time that when the assertion of an opposite claim of title by heirs was made, by the mere proof of prior title in the ancestor of the heirs, in the horse in controversy, without proof that the horse had been stolen, or other circumstances tending to show that the ancestor had not parted with the title, and without any proof of any declaration of any claim of ownership by the ancestor during the proper period of time, when such declaration would be admissible, would in this character of case reject the claim of the opposing claimants to the horse and carry with it the title of the horse to the opposition vendees.

While not wholly similar upon the facts of this case, I am inclined to think that the opinion of Chief Justice Garrett of the Galveston court, on rehearing, in the cause of Stafford v. Kreinhop, 63 S.W. 166, in so far as the principle enunciated therein is applicable to the case here, and is as follows: "We now adopt the conclusion of the trial court upon the presumption of the transfer of the certificate, as we find it supported by the circumstances that Baker dealt with the certificate, and evidently had it in his possession; that he caused it to be located, and received the patent, which he delivered to Haggerty when he sold the land to him. These facts, aided by the further facts of long possession and payment of taxes by Baker's vendees, and inaction by the plaintiff, support the judgment of the court below." I am unable to agree with Justice HALL as to his application of the rule of evidence to this record, when he says, "reference to the record shows that the certified copy of the affidavits were not offered by appellees to show the loss of the original and compliance with the provisions of the statute to authorize the Land Commissioner to issue the duplicate, but were offered as a whole for all purposes," and quotes authority where evidence is offered as a whole and objection is made to an irrelevant or incompetent portion, which is sustained; and another authority where proffered testimony is not admissible for the purpose for which it is proposed, and objection is made and sustained, although it may have been admissible for some other purpose. In both cases it is the duty of the one offering the testimony to reoffer the same. This cause having been tried before the court and the testimony clearly admissible for certain purposes, after judgment has been rendered by him, I think the rule laid down by Justice Collard, in the case of Wells v. Burt, 3 Tex. Civ. App. 436, 22 S.W. 421, applies, and which he expresses as follows: "Appellants ask a reversal upon the ground that the court erred in admitting the testimony of Joseph Henderson, to the effect that Miller told him that he owned the house and lot between 1857 and 1860, and that his deed was burned before it was recorded. It was permissible to prove that Miller, being in possession, claimed the property and that the deed under which he claimed was lost. The evidence was admissible for these purposes. The case was tried by the court without a jury, and it will not be presumed that the court gave other than legal effect to the testimony. If the trial had been before a jury, the judge should have limited the effect of the evidence, by a charge to the legitimate purpose of claim of ownership, the existence and loss of the deed; but there being no jury, and the evidence being admissible, it will not be presumed that the judge misapplied it. Lindsay v. Jaffray,55 Tex. 639, 640; Clayton v. McKinnon, 54 Tex. 206; Melton v. Cobb,21 Tex. 539 ." I am authorized to say that Chief Justice HUFF assents to this view.

Considerable stress has been laid upon the question of possession in this matter as a necessary circumstance of proof of title. There is no proof of actual possession by the vendees, but there is constructive possession by the payment of taxes for several years, and, while stress is made in some of the authorities upon possession, I do not understand that, if the circumstances were sufficient to prove a verbal sale, the lack of possession, in view of the sufficiency in other respects, would destroy that which was otherwise sufficient. The case of Arthur v. Ridge,40 Tex. Civ. App. 143, 89 S.W. 17, decided by C.J. Gill, is to some extent applicable upon this question. It is true there seems to have been a continued payment of taxes in that case, and the lands were wild lands, which is not shown in this record, unless you would attempt to assume it as a matter of public history to a period of development and settlement in that country, though it is not shown when such period began; but Justice Gill really decided the cause, as I gather it, upon the following principle, the presumption of the execution of a conveyance in question there being wholly analogous to the question of a presumption of a grant of the certificate here: "It is generally true that some sort of possession is required to authorize the presumption of a grant, and when the court indulges the presumption as matter of law it is perhaps invariably required. But, where the issue is one of fact for the jury, it is not perceived why the execution of a conveyance may not be established by circumstances as any other fact the existence of which a jury may be called upon to determine." Judge Gill, in the same case, quoting from Bounds v. Little, 75 Tex. 316, 12 S.W. 1109, decided by Chief Justice Gaines, who in the Bounds Case was discussing the question of the presumption of grants, and a part of which we extract as follows: "Juries are bound to decide according to the actual truth of the facts. * * * It would therefore be absurd and inconsistent to say that a jury was not to be allowed to find according to the real fact, when they are satisfied that an actual conveyance has been executed."

Upon the whole record, I think this cause should have been affirmed, and respectfully record my dissent from the majority opinion of the court reversing and remanding the cause, and, except as to the reasons advanced by Chief Justice HUFF for the reversal of the cause, I assent to his opinion in all other respects.