Baker v. Westcott

• Decision Date: 26 February 1889
• Citation: 11 S.W. 157
• Parties: BAKER <I>et ux.</I> <I>v.</I> WESTCOTT.
• Court: Texas Supreme Court

11 S.W. 157

BAKER et ux.v.

WESTCOTT.

Supreme Court of Texas.

February 26, 1889.

Appeal from district court, Jefferson county.

Suit in the nature of trespass to try title, brought by Phœbe M. Westcott against A. H. Baker and wife. Judgment for plaintiff, and defendants appeal.

O'Brien & John, for appellants. Perryman & Gillaspie, for appellee.

GAINES, J.

The appellee becoming the sole plaintiff by the amended petition filed in this case in the court below, sued to establish her title to, and to recover possession of, a certain tract of land fully described, — it being a part of a league survey granted to H. P. Savery in 1835 by a title extended by Special Commissioner George A. Nixon. She alleged that Savery, the original grantee, by an instrument executed by him in 1841, conveyed the title to one John Westcott and bound himself to make title to the said Wescott whenever the latter should become a citizen of Texas; that Westcott became a citizen of Texas in 1859, and subsequently died, having made his will, by which he devised the land so conveyed to his son, John H. Westcott; and that John H. Westcott had since died, leaving plaintiff as his sole heir. The defendant pleaded not guilty, and also specially alleged that defendant Hattie P. Baker was sole heir of H. P. Savery, and as such entitled to the ownership and possession of the land in dispute, and prayed that the instrument under which plaintiff claims should be removed as a cloud upon her title. The evidence and admissions of the parties show beyond controversy that the plaintiff has whatever title John Westcott acquired in the land in dispute, and that defendant Hattie P. Baker has all the title in the same of which H. P. Savery died seised. The determination of these leading questions will dispose of the case.

The first is as to the admission in evidence of the instrument under which plaintiff claims. The original instrument was lost, but proof of its loss was waived, and it was agreed that the record of the instrument as it appeared in the registry of deeds might be offered, subject, however, to all legal objections to "the record or certified copies thereof." The defendants objected to the introduction in evidence of the copy, on the ground that the deed was never properly acknowledged so as to admit it to record. The form of the acknowledgment is in substantial compliance with the statute, but it was made in Cincinnati, Ohio, before a notary public, and is dated the 16th day of June, 1841. At this date there was no law of the republic of Texas which authorized a notary public in one of the states of the United States to take acknowledgments of written instruments for the purpose of admitting them to record. But in 1874 an act was passed which provided that instruments which had been properly acknowledged out of this state and in any state of the United States, before an officer authorized to take such acknowledgment by the laws existing at the date of the act, should be held to be duly acknowledged; and that, if also registered, the instrument should be considered duly registered, with the "full effects and consequence of existing laws." 2 Pasch. Dig. art. 7418a. By the law in force at the date of that act, an acknowledgment taken before a notary public in another state was legal. Id. art. 7418. The validity of the act of 1874 as an enabling and healing statute cannot be questioned, (Butler v. Dunagan, 19 Tex. 559;) and it cures the original defect of the want of power in the notary who took the acknowledgment. It also made valid the original registration. We are of opinion that the record was properly admitted in evidence, — the predicate for the introduction of secondary proof having been laid by the agreement of parties.

The second question is, does the written instrument in controversy purport to convey the equitable or the legal title? In its general outline it is in the form of a bond for title; but the form of the instrument is a matter of no moment if it manifests the intention of the grantor to convey to the grantee the entire title by the very terms of the instrument itself. By the writing in controversy (which is dated in 1841, and is under seal) Savery binds himself in the sum of $10,000 to make title to Westcott (who is recited to be "of the city of Cincinnati, in the state of Ohio") to the land in controversy whenever he shall become a citizen of Texas, or to any person or citizen of Texas whom he may designate; and, after the description of the land, reads as follows: "I dispossess myself of, and for my heirs and assigns relinquish the dominion and possession of, the said tract of land before described, which I have acquired by the before mentioned title, in favor of said John Westcott, that whenever he becomes a citizen of the republic of Texas, or any person or persons being a citizen or citizens of the said republic of Texas to whom he may transfer this covenant, his heirs or assigns, may enjoy and possess the same as any other thing acquired under just and legal title, and who for the rights and privileges may hold and legally represent, and I confer upon the said John Westcott as ample power as I may possess to enter upon said land in person, by his representative or representatives, his or their heirs or assigns, to cut and take away the timber and grass thereon, to occupy, use, lease, or dispose thereof by sale to any citizen of Texas; and I bind myself, my heirs and assigns, to make good this covenant to convey as aforesaid, and to the observance of all the above bind myself, my person, and obligate my property, present and future; and do hereby renounce the laws of ...