Bohanan v. Hans

• Decision Date: 01 January 1863
• Parties: JAMES BOHANAN AND WIFE v. HENRY HANS.
• Court: Texas Supreme Court

26 Tex. 445

JAMES BOHANAN AND WIFE

v.HENRY HANS.

Supreme Court of Texas.

1863.

The grantee of a league of land executed to L. L. V. a bond for title to one-half of the league on the 7th day of June, 1831. The administrator of L. L. V., on the 6th day of January, 1833, sold the bond for title under an order of the alcalde of the jurisdiction of Washington, and D. A. became the purchaser at public sale. D. A. petitioned the judge of the first instance of the jurisdiction of Austin for the appointment of a curator of the grantee, and for a decree that the curator execute to him a deed for the half league. On the 11th September, 1835, the judge decreed that the curator execute to him a deed, which was done accordingly: Held, that the decree of the judge of the first instance was a valid judgment, divesting the original grantee of the title and vesting it in D. A., and that it concluded all inquiry into the legality of the original contract between the grantee and L. L. V., and into the legality of the administrator's sale.

The case of Mills v. Alexander, 21 Tex. 154, cited and approved. [21 Tex. 154;27 Id. 80.]

A party objecting to evidence ought to state his objection clearly and specifically, so that it may be understood by the court, and obviated by the opposing party if it be capable of being removed by the production of other evidence. It is too late to urge such objections in this court unless they are clearly and specifically made in the court below.

Where objections to evidence are made, not to its competency, but only to the manner of its introduction or the mode of proof of the part proposed to be proved, they must be taken when it is produced upon the trial, or they will be deemed to have been waived. It is too late to raise such objections by asking instructions of the court after the evidence has gone to the jury.

Error in the rulings of the court below upon immaterial questions, in no wise affecting the merits of the case, is not a good cause of reversal. It is not the practice of the court to reverse a judgment merely for the purpose of correcting the errors of the court below upon abstract and immaterial questions, which can have no proper influence in the final decision of the case.

APPEAL from Washington. Tried below before the Hon. R. E. B. Baylor.

Action of trespass to try title to a portion of a league of land in Washington county brought by appellants, James Bohanan and Lea A. Bohanan, his wife, against the appellee, Henry Hans. Lea A. Bohanan claimed title to the land by virtue of a grant to her first husband, Samuel Hinch, since deceased, and by a deed of gift from Charles G. Hinch. The defendant pleaded general denial, not guilty, three, five, ten and fifteen years' limitation, stale demand and set up title in himself.

On the trial, an agreed statement of facts was submitted, subject to certain exceptions and objections. It was admitted that a full and perfect title to a league of land was extended to Samuel Hinch on the 31st day of March, 1831, and that his title included the land in controversy. It was in proof that Lea A. was married to Samuel Hinch in 1828 or 1829, and that he died four years thereafter; that Charles G. Hinch was the only issue of Samuel and Lea A. Hinch; Charles made a deed of gift of his interest in the league to his mother on the 5th day of March, 1852; Charles died soon thereafter. Defendants read in evidence a bond for title executed by Samuel Hinch to Lewis L. Veeder on the 7th day of June, 1831, for one-half of the league of land. It was agreed that a transcript of the proceedings had in the succession of L. L. Veeder, deceased, from Austin county, so far as the same could be done without legal objection, should be made a part of the case. From this transcript it appears that the administrator of the estate of Lewis L. Veeder applied to the alcalde of the jurisdiction of Washington for the sale of the movable and immovable property of his intestate; decree was rendered and sale made on the 6th of January, 1833; among other things, the bond for title from Samuel Hinch to Lewis L. Veeder was sold at public auction, and David Ayres became the purchaser. It was further agreed that a certified copy taken from the record of Washington county, of the petition of David Ayres and of the proceedings thereon, so far as the same was admissible under the issues, be made a part of the case agreed upon. From which copy it appears that David Ayres, on the 15th day of September, 1837, petitioned George Ewing, judge of the first instance of the jurisdiction of Austin, representing that Samuel Hinch, formerly a resident of the jurisdiction of Austin, had removed therefrom and was a non-resident, setting out the execution and contents of the bond from Samuel Hinch to Lewis L. Veeder, the death of Veeder, the appointment of an administrator, the sale of the bond under a decree of the alcalde of the jurisdiction of Washington, and prayed that a curator ad hoc et ad litem of Samuel Hinch be appointed, and for a decree that the curator execute a deed to the petitioner for the half of the league as specified in the bond. A curator was appointed. The judge of the first instance of the jurisdiction of Austin, on the 11th day of September, 1835, decreed that the curator execute a deed as prayed for, which was accordingly done. It was further agreed, that defendant claimed 1,480 acres of the one-half of the Hinch league sued for, by a chain of perfect title on its face, and other mesne conveyances down to the defendant. Other conveyances and evidence in support of the plea of limitation were introduced but not noticed in the opinion of the court.

The plaintiff objected to the reading of the translated copy of the title bond from Hinch to Veeder, because it was illegal and void, because it purported to be for one-half of a league of land, the title to which was extended at a different time from that stated in the bond. The objections were overruled, and plaintiff excepted. The plaintiff objected to the reading of the transcript from Washington county upon the ground that it showed the sale of a mere equity, and said sale of Hinch's bond to Veeder could confer no title to the purchaser. The objection was overruled, and plaintiff excepted. The plaintiffs objected to the reading of the copy of the record of Washington county court, purporting to be a copy of a deed from A. W. Ewing, curator, to David Ayres, made in pursuance of the decree of the judge of the first instance of the jurisdiction of Austin:

1. That the same upon its face, when all taken together, is absolutely void.

2. That the court rendering the judgment on which said curator was ordered to make said deed had no legal jurisdiction. The judgment rendered in said cause was void.

3. That said transcript not being a record of the proceedings of any court of record, nor the predicate having been laid for the introduction of said copy, further than is stated in the case agreed on.

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