Baldwin v. Goldfrank

• Decision Date: 13 May 1895
• Citation: 31 S.W. 1064
• Parties: BALDWIN et al. v. GOLDFRANK et al.
• Court: Texas Supreme Court

31 S.W. 1064

BALDWIN et al. v.GOLDFRANK et al.

Supreme Court of Texas.

May 13, 1895.

Error to court of civil appeals, Fourth supreme judicial district.

Trespass to try title by L. H. Baldwin and others against Max Goldfrank and others.A judgment for defendants was affirmed by the court of civil appeals (26 S. W. 155), and plaintiffs bring error.Affirmed.

S. M. Ellis, J. H. James, I. P. Simpson, and Jas. Raley, for plaintiffs in error.C. Upson, Oscar Bergström, T. H. Franklin, and L. G. Denman, for defendants in error.

GAINES, C. J.

This suit was brought by Cora C. Hutchings, joined by her husband, to recover of M. Goldfrank, Simon Lavenburg, Louis Lavenburg, and A. B. Frank, an undivided one-half interest in a tract of 28 leagues and 10 labors of land originally granted by the king of Spain to Antonio Rivas, and patented by the state of Texas to his heirs, by virtue of a special act of the legislature.The plaintiff Mrs. Hutchings claimed title through two deeds executed to W. L. Cazneau, one in 1850 and the other in 1852.The evidence showed that at the date of these deeds Cazneau was a married man, and that his wife was the grandmother of Mrs. Hutchings; that Cazneau and his wife were both dead, and that the latter left a will in which she devised all her lands in Texas to her granddaughter for life.The plaintiffs made no attempt to deraign title from the sovereignty of the soil; but sought to show that both parties claimed under a common source, and that Mrs. Hutchings had the superior title under that source.In order to establish this claim, they introduced in evidence a chain of title down to defendants as follows: (1) A deed executed April 19, 1875, by Vicente Garza, purporting to convey to John C. Crawford all the interest in the land in controversy which had been conveyed to the grantor, or which he had been authorized to convey by a certain instrument executed by the heirs and the assigns of heirs of Antonio Rivas(naming them); (2) a deed dated November 1, 1876, executed by Vicente Garza for himself and more than 30 others, who are therein named, and are described as the heirs of Antonio Rivas, conveying to Crawford all the right, title, and interest of the grantors in the Rivas grant; (3) a deed of April 9, 1877, from John C. Crawford to A. B. Frank, conveying all the above-named grant, except certain parcels previously conveyed to M. Goldfrank, the Lavenburgs, and others; and (4) a deed from Frank and Goldfrank to the Lavenburgs, conveying all the grant except about 4½ leagues.In connection with these conveyances, the plaintiffs offered testimony tending to prove the execution of a deed to an undivided half interest in the land in controversy, from Vicente Garza, as attorney in fact of the heirs of Rivas, to W. L. Cazneau, which it was claimed had been lost, and after diligent search could not be found.The substance of that testimony is as follows: One Angle testified that in 1885 or 1886he saw a deed, signed by Vicente Garza, in which the grantor, as attorney for the heirs of Rivas, purported to convey to W. L. Cazneau an undivided one-half interest in the land in controversy; that the deed bore date July 12, 1852, and that neither in the body of the deed nor in the signature did the names of the heirs appear.The instrument, when the witness saw it, was either in possession of Judge Ware or of A. M. Oliphant.Oliphant deposed that in 1877he had a correspondence with one McManus, who professed to represent Cazneau, in relation to an interest claimed by Cazneau in the Rivas grant and another survey; that he received such a deed, but did not recollect from whom he received it, and did not know what he did with it.He did not think he had delivered the deed to any one, but thought he had filed it away among some old papers, and that it had been lost.Albert Turpe testified that he saw such a deed in Oliphant's possession; that he was then county clerk of Maverick county; that McManus had sent him the deed by mail to be recorded, but that he did not record it, because it was not acknowledged for registration; that he returned it, with a suggestion that it be sent to Oliphant; and that he knew Vicente Garza's signature, and that the signature to the deed was his genuine signature.He also testified that he had never heard of the Cazneau claim to the land until in the year 1877, when a deed from Garza to Cazneau, dated in 1850, was sent to him for record; and that prior to that time, while he knew the grant, it was claimed by various persons under the Rivas title.J. H. James, one of plaintiffs' attorneys, testified that he made inquiry of J. C. Ware for the deed, and was informed by him that if he had ever had such a deed it would be found among the papers of one Stone's estate, which were in the hands of one Riddle; and he, the witness, had made search among the papers of the estate in Riddle's possession, and was unable to find the deed.It was also proved that Oliphant informed another of plaintiffs' attorneys that he did not have the deed, but indicated where his (Oliphant's) old papers would be found; and that search was made in the place indicated, but that no papers were found there.In this same connection, the plaintiff also introduced a power of attorney from W. L. Cazneau to McManus, dated June 4, 1875, which authorized McManus to take charge of, manage, or sell Cazneau's real estate in Texas.The evidence was objected to upon the following grounds: First, that the search was insufficient; second, that the deed was void because it does not disclose the names of the persons for whom Garza purported to convey; and, third, that the signing and delivery of the instrument was not sufficiently proved.The court sustained the objections, and excluded the evidence, and the plaintiffs took a bill of exceptions.

The court of civil appeals properly held, as we think, that the testimony as to the execution and contents of the deed was sufficient to go before the jury.But, when we granted the writ of error we were of opinion that they erroneously held that the proof of the loss of the instrument was not sufficient.It still seems to us that the testimony shows that the deed was last seen in the possession of Oliphant, and to lead to the conclusion that it was lost while in his possession.We doubt if plaintiffs should have been reasonably required to go further in their search.But, in the view we take of the case, we do not find it necessary to decide this question.For another reason the exclusion of the deed was harmless, even if erroneous.It was unaccompanied by any power of attorney from the heirs of Rivas conferring authority upon Vicente Garza to convey their title to the land.Unless, from the facts proved and offered to be proved, the jury would have been authorized to presume the existence of the power of attorney, the deed was not admissible.Under certain circumstances, after a long lapse of time, a power of attorney will be presumed, in order to support a deed which purports to have been executed by virtue of such power.In many courts it is held that proof of possession under the deed is necessary in order to establish such presumption.The rule that a deed or a power may be presumed after a long lapse of time is not an arbitrary one.It does not rest upon any consideration of public policy with reference to quieting titles to property.It has its just foundation in the principle that long and continuous acts of ownership, acquiesced in knowingly by those who hold an apparently adverse title, lead to the conclusion that the persons so exercising such acts have acquired the title.Since possession is the most indubitable act of ownership which can be exercised by a claimant of land, it would seem that in a country where there are no unoccupied lands it is reasonable to hold that, without such proof of possession, the presumption of the grant will not be allowed.In a country, however, where much of its lands are unoccupied, a different rule should prevail; and therefore it has been held in this state, as in many others, that possession is not indispensably requisite to the presumption.Garner v. Lasker, 71 Tex. 441, 9 S. W. 332, and cases cited.In the case here cited, there was payment of taxes under a deed purporting to have been executed by virtue of a power of attorney, besides other acts showing a continuous claim to the land, and it was held that the power might be presumed.That case, in our opinion, was decided correctly; but my recollection is that the court regarded it, as we now regard it, as pushing the doctrine to the very verge of authority.In the present case, there was no evidence as to any claim to the land whatever, by the grantee in the deed in question, for more than 24 years.That claim was asserted by the record of a deed to the same land, made in 1850.Even that cannot be considered an assertion of right under the deed now in question.In so far as the evidence informs us, the latter instrument lay dormant, and was not brought to light until 1877 or 1878, when it was sent to the clerk of the county court of the county in which the land lies, for record.The clerk had never heard of Cazneau's claim until the previous deed was sent him.Prior to that time, however, he knew the grant, and knew that it was claimed by various persons under the Rivas title.It does not appear that either the heirs of Rivas, or any claiming under them, ever knew of the...