Belcher v. Fox

• Decision Date: 14 December 1883
• Docket Number: Case No. 1542.
• Citation: 60 Tex. 527
• Parties: T. J. BELCHER ET AL. v. A. E. FOX ET AL.
• Court: Texas Supreme Court

60 Tex. 527

T. J. BELCHER ET AL.

v.A. E. FOX ET AL.

Case No. 1542.

Supreme Court of Texas.

Dec. 14, 1883.

APPEAL from Navarro. Tried below before Jno. H. Rice, Esq., special judge.

Edward H. Belcher and his wife, Lydia M., acquired during their marriage a six hundred and forty acre headright certificate. During the life-time of Lydia M., two hundred and fifty acres of said certificate were sold or traded to John Belcher, but the deed appears not to have been made until long after the death of Mrs. Belcher. In 1841 Mrs. Belcher died, leaving three hundred and ninety acres of said certificate then on hand. The defendants below, appellees, claim through a chain of transfers from E. H. Belcher to J. W. Massie, from Massie to Wilson, from Wilson to Jordan, from Jordan to Hanks, from Hanks to Peak, and from Peak to defendants. The first of these transfers, to wit, from E. H. Belcher to J. W. Massie, bears date in 1849, several months subsequent to the death of Mrs. Belcher. These transfers were all impeached for forgery by a plea of non est factum. Appellants brought this suit to recover the land, claiming that they should recover the entire tract because the deed from their father to Massie was a forgery; or, if this deed was genuine, then they sought to recover the community interest of their mother.

Frost, Barry & Lee, for appellants, cited as to the evidence as to forgery: Cox v. Cock, 59 Tex., 521;Williams v. Conger, 49 Tex., 594;Gaines v. Cotton, 49 Tex., 118;Newby v. Haltaman, 43 Tex., 314;Stroud v. Springfield, 28 Tex., 649;Powell v. Haley, 28 Tex., 52; R. S., art. 2257; Hobby's Land Law, sec. 92; 1 Greenl. Ev., 558. As to value of community property: Sparks v. Spence, 40 Tex., 702.

No briefs for appellees on file.

STAYTON, ASSOCIATE JUSTICE.

The appellants claim the entire land upon the ground that the deed purporting to have been made by their father to J. W. Massie, through which the appellees claim, was never in fact executed by him; and they further claim, in the event that deed is genuine, that they are entitled to one-half of the land through inheritance from their mother, the certificate upon which the land was granted being community property, and the purported sale by their father having been made after their mother's death.

The plea of non est factum, filed by the appellants, put the burden of proving the execution of the several deeds named in it upon the appellees, and it becomes necessary to inquire whether the deeds were so proved as to justify the court in permitting them to go to the jury.

The land is situated in Navarro county.

The deed purporting to have been made by E. H. Belcher to Massie bears date July 13, 1849; that from Massie to Wilson bears date April 3, 1850; and that from Wilson to Jordan December 4, 1850.

The original deeds were not produced, affidavit of their loss having been made; by agreement the deeds were read from the record of deeds for Navarro county, subject to all legal objections which could be raised to the originals had they been produced.

These deeds were recorded in Navarro county in 1870; all had subscribing witnesses who are shown to be dead, and purport to have been proved for record by some of the witnesses as early as March 16, 1853, this being the date of the proof for record of the last deed named.

The land was patented to E. H. Belcher, the father of appellants, on September 22, 1862, and he died on October 26, 1865.

The deeds all purport to have been proved for record before James McWilliams, county clerk of Rusk county, or his deputy.

The only evidence offered by the appellees of the genuineness of the attacked deeds, if that be any evidence, was that the persons whose names appear as subscribing witnesses to the deeds, as well as the officers before whom they purport to have been proved for record, were dead, and that they were persons of good reputation, resident in Rusk county at the time the deeds bear date, as was also E. H. Belcher.

It further appears from the testimony of a witness that he located the land in controversy for F. M. Hanks, who claimed by a deed made to him by Jordan of date March 9, 1855, the execution of which was proved; but the records of the surveyor's office showed that the person who made the location made it for another person than Hanks. The location was made October 26, 1861.

From a certificate copied into the record of the paper purporting to be a deed from E. H. Belcher to Massie, it would appear that that deed was recorded in Rusk county on September 29, 1849, but there is no evidence whatever that the deed in fact was so recorded. Hanks conveyed to Peak December 7, 1864, but the deed was not recorded until May 20, 1870. Peak conveyed to the appellees in June, 1875.

The testimony of several witnesses seems to have been introduced without objection, which, it is admitted in the record, proved that the reputation of Hanks as a land dealer was bad.

The appellants objected to the admission of the deeds,...