Bauman v. Chambers

• Decision Date: 17 June 1897
• Citation: 41 S.W. 471
• Parties: BAUMAN v. CHAMBERS.
• Court: Texas Supreme Court

41 S.W. 471

BAUMAN v. CHAMBERS.

Supreme Court of Texas.

June 17, 1897.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by J. T. Chambers against Herman Bauman. Judgment for plaintiff, and defendant appeals to the court of civil appeals, which certifies certain questions.

Chas. L. Lauderdale and W. T. Dalrymple, for appellant. E. L. Rector, for appellee.

GAINES, C. J.

The court of civil appeals for the Third supreme judicial district have certified for our decision the following questions:

"This suit was brought by appellee, Chambers, against appellant, Bauman, October 2, 1890, to recover an undivided half of two 320-acre surveys in Llano county, originally granted to Ludwig Eltrop, patented to the heirs of M. Hunt, assignee, March 29, 1860. The petition shows that defendant is the owner of the other half of the land; asks for recovery of plaintiff's half, and for partition. It is alleged by plaintiff that both parties claim from a common source, Sarah Baldwin; that after she became the owner of the land she inter-married with one P. C. Tucker, and died intestate, without issue, and without father or mother.—her husband, Tucker, and plaintiff, Chambers, her brother, being her only heirs at law; that defendant claims under Tucker, thus investing title to the land, one undivided half in Tucker, and the other half in plaintiff. Sarah Baldwin married and died as stated, leaving as her only heirs at law her husband, Tucker, and her brother, the plaintiff. The legal title to the land was conveyed by the Tucker administrator of the estate of Memucan Hunt, by probate sale and deed, to one Sidney Scudder, which sale is attacked by defendant upon the ground that Tucker, the administrator, was the real purchaser, and for a grossly inadequate consideration. But at present we have no concern with that question. Plaintiff read in evidence from the transcribed records of Llano county (being a transcript made by order of the commissioners' court of the record of deeds of Llano county, which records have been partially destroyed by fire) so much of the following deed as was not destroyed by fire: `Sidney Scudder to Sarah Baldwin, Deed. State of Texas: Know all men by .... Sidney Scudder of Galveston .... twelve hundred and .... win if .... Fisher and transferred by .... July 18th .... clin .... Hunt in December 185 .... Memucan Hunt 29th March 1860. Let .... Vol. 29, sold in May 1867 by order of court .... vey by the administrator of Memucan Hunt .... the the patent whereof is delivered herewith and made .... hereof. Together with all and singular the rights and appurtenances to the same belonging or in any wise appertaining. To have and to hold all and singular the above described premises unto the said Sarah Bald .... heirs and assigns forever and I covenant to and with the said Sarah .... her heirs and administrators and assigns that I ha .... right and lawful authority to sell and convey .... that it is free and clear of all incumbrance. I warrant and will forever defend the same to the .... Baldwin her heirs, executors, administrators and assigns .... ever claiming or to claim the same or any part thereof by through or under me. Witness my hand and scrawl in lieu of seal at Galv .... this 2nd day of April, A. D. eighteen hundred and sev .... five [seal.]' This partially destroyed instrument was admitted without objection. Among defendant's pleas is the following: `About the year 1875—the exact day and month being to the defendant unknown—said Sidney Scudder, at the instance and request of said P. C. Tucker, without any consideration moving him thereto, conveyed all said land' (the land in suit) `to Sarah C. Baldwin, for the sole use and benefit of said P. C. Tucker; and she, then contemplating marriage with him, took and received said conveyance and agreed to hold said land in trust for said P. C. Tucker, and, if not for said P. C. Tucker, then for said estate of Memucan Hunt, and the persons entitled thereto through the said Memucan Hunt and Anne T. Hunt.'

"Now, the questions we submit to the supreme court are: (1) Is the clause quoted in defendant's answer such an admission of the fact that Scudder executed a conveyance to Sarah Baldwin to the land in controversy as to establish the fact without proof, or to dispense with proof of the fact by plaintiff, the clause not having been read in evidence by plaintiffs? (2) Should the answer—not read in evidence —and the mutilated deed which was put in evidence be taken as establishing the fact of such conveyance? (3) If the answer, alone, or taken with the deed, establish the fact of such conveyance, is the burden upon the plaintiff to prove the alleged purpose for which the conveyance was made?

"This court, because of conflict of decisions in this state upon the questions propounded, deems it advisable to certify them to the supreme court of the state for decision. Morris v. Runnells, 12 Tex. 177; Jouett v. Jouett, 3 Tex. 150; Cotton v. Jones, 37 Tex. 34, 343; Moffatt v. Sydnor, 13 Tex. 627; Cook v. Hughes, 37 Tex. 345; Garrett v. McMahan, 34 Tex. 307."

The statement upon which the questions are predicated does not advise us...