Brewer v. Cochran.

• Decision Date: 31 January 1907
• Parties: BREWER et al. v. COCHRAN.
• Court: Texas Court of Appeals

99 S.W. 1033

BREWER et al. v. COCHRAN.

Court of Civil Appeals of Texas.

January 31, 1907.

Rehearing Denied February 21, 1907.

Appeal from District Court, Hardin County; L. B. Hightower, Judge.

Action by E. W. Brewer and others against Owen L. Cochran. From a judgment for defendant, plaintiffs appeal. Affirmed.

Oliver J. Todd, for appellant. Ewing & Ring, for appellee.

REESE, J.

In this suit E. W. Brewer and other plaintiffs, heirs at law of William and Caroline Brewer, deceased, seek in an action of trespass to try title to recover of Owen L. Cochran the David Scott quarter league survey in Hardin county. They also seek to have a rescission of certain quitclaim deeds executed by them to W. H. Cochran, under whom the defendant claims, on the ground that the execution of said deeds was procured by fraudulent misrepresentations on the part of J. B. Cochran acting at the time for W. H. Cochran, who claimed to be the owner of the land, to the effect that the said William and Caroline Brewer had sold and conveyed the land in their lifetime. The defendant answered by general denial and a plea of not guilty, and specially pleaded that the land in controversy had been sold and conveyed by deed executed November 30, 1865, by William and Caroline Brewer, plaintiffs' ancestors, under whom they claim title, to Ingham S. Roberts, whose title defendant has. It was alleged that the land in controversy had been sold by the administrator of David Scott, the original grantee, under order of the probate court on June 1, 1863, the sale being on 12 months' credit with vendor's lien retained in the deed; that in order to procure the money to discharge this indebtedness the said William and Caroline Brewer, on November 30, 1865, sold and conveyed the land to Ingham S. Roberts, and on the same day H. E Simpson, administrator de bonis non of said David Scott, executed to said Brewers a release of said vendor's lien on the land. It is further averred that this deed and release are both lost or destroyed, as also the records thereof, if ever recorded, and it was sought to establish their execution by circumstantial evidence. Defendant also set up the execution by plaintiffs and Mrs. Cooper, one of the heirs who did not join in the suit, of quit-claim deeds to W. H. Cochran, and denies any fraud or misrepresentation in the procurement of the same. The case was tried without a jury, and judgment rendered for defendant, from which plaintiffs appeal.

Without discussing the many assignments of error in the order in which they are stated in the brief, we will first dispose of certain questions which, in our judgment, are of controlling importance. William and Caroline Brewer are the common source of title, plaintiffs, who are their heirs at law, claiming title under such heirship, and defendants claiming title under deeds from said William and Caroline Brewer. Defendant established by evidence of duly recorded deeds title in himself from Ingham S. Roberts; the deeds from Roberts under which he claims having been made in October, 1869, and recorded immediately thereafter. To establish the link in his chain of title from Brewer to Roberts defendant endeavored by circumstantial evidence to show that William and Caroline Brewer had conveyed the land to Roberts by deed executed November 30, 1869, which deed had been lost or destroyed together with the record thereof, if in fact it had ever been recorded. At any rate, defendant did not claim to have any other proof of the execution of this deed than that afforded by certain circumstances relied upon for that purpose. It is not an open question in this state that the execution of a deed for land may be established by this character of evidence, and the principle is not controverted by appellants. The circumstances relied upon were open and notorious assertion and claim of ownership by Roberts and those claiming under him from the date of Roberts' deeds in 1869 down to the present time, together with payment of taxes. No actual possession was shown in any of the parties, plaintiffs or defendant or his vendors, but it was shown that the land was wild and unimproved land. Defendant further relied upon the evidence afforded by certain papers and documents found among the papers of Ingham S. Roberts, who died in 1885, and also the recitals in the deeds of Roberts executed in 1869, which are links in defendant's chain of title. Appellants objected to the introduction in evidence of these papers and documents, and also the recitals in the deeds from Roberts, and reserved proper bills of exceptions to the rulings of the court admitting the evidence, and the points involved are presented by proper assignments of error.

In appellants' brief the most serious attack is upon the admission in evidence of the recitals in the deeds from Roberts. On October 5, 1869, by deed of that date, Roberts sold and conveyed a half interest in the land in controversy to Dennis Perkins, and on October 7, 1865, he sold and conveyed the other half interest to appellee Owen L. Cochran. In the deed to Cochran appears the following recital in connection with the description of the land conveyed: "One undivided half of that one-fourth of a league of land granted by the State of Texas to David Scott * * * and conveyed by David Burrell and H. E. Simpson, administrators representing the estate of David Scott, deceased, as per deed dated June 1, A. D. 1863, and November 30, 1865, to William and Caroline Brewer, and by them to me as per deed dated November 30, 1865, which patent and deeds are here referred to as part of this conveyance." The deed to Perkins contains substantially the same recitals. The appellants' objections are to the recitals as to the conveyance from Williams and Caroline Brewer to Roberts, on the ground, substantially, that they are recitals in deeds between third parties, having no connection with themselves or their said ancestors, and are self-serving declarations of Roberts.

The other papers and documents admitted over appellants' objections are:

(1) A letter of Isaiah Junker to Ingham S. Roberts, which is here inserted entire: "Beaumont, Texas, November 27, 1865. Dr. I. S. Roberts—Dear Sir: I have almost succeeded in making the trade with Brewer & wife for the David Scott Headright 1,107 acres of land. From all I have since learned, it is better than I represented to you; but owing to the fact of their being no offices in this county, the separate acknowledgment of Mrs. Brewer cannot be taken, and I shall have to get them if possible to go to Liberty and execute the papers there. Brewer and wife are joint owners in the purchase of the land at the probate sale, and their joint note was given for the payment at 12 months from date. The note is yet unpaid and I could not make the trade so as to get titles all right without paying the note, so title could be made to Brewer from the administrator of Scott's estate, which I agreed to do, in order to secure this land, which is the best bargain I know of anywhere at this time. But it will take all the money you and Gentry have in my hands, $700 and something over, as I am to pay Brewer and wife one hundred and fifty dollars and pay the note and interest, amounting to over six hundred dollars. With what I am to pay Brewer and wife will make the land cost near eight hundred dollars— that is, if we could close the trade here, but if I can get them to go to Liberty to close the matter, I expect I will have to pay their expenses, which will be twenty-five or thirty dollars or more. This will leave me without any money and one hundred dollars or over out of my own pocket, and will make it necessary that I wait until I get more funds from you. As I cannot call on Gentry, for the deed to the land will be to you, I hope you will not allow me to be disappointed in getting money to replace Gentry's part at once. Brewer is hard up for money, and I think will go to Liberty with me and finish the deed and sale. He thinks I want the land to pay another debt. No other party has yet made him an offer, but I must not allow much time to elapse as others might. There are many strangers about and I fear some of them want land. He has no suspicion that I want the land very bad. I wrote you a note by last train. Do not fail to write and send money. Respectfully, Isaiah Junker."

(2) Certain entries from a memorandum or cash book as follows:

                            "Isaiah Junker, Dr
                Nov.  15.  Cash paid to self............ $ 10 00
                      22.   "    "    "  "  ............   25 00
                            " given Junker, $200 .......  200 00
                            " sent Junker, $600 ........  600 00
                Dec.  21. Cash sent with A. M. Gentry
                           by express ..................  900 00
                Jany. 10. Cash given Junker at Austin
                           .............................  200 00
                           Amt. balance paid him........   20 00
                      30.  Cash to self ................   80 00
                           Bill of groceries, Milby ....   41 50
                           Land certif. Stearns for
                            640 
                           4 land certif. Williams
                           Cash specie..................  150 00
                           Groceries at Gregory 
                           Do. at Christians ...........   21 27
                Aug. 20.  Cash Austin ..................   20 00
                

Appellee contends that the item "sent to Junker $600.00" referred to money sent to Junker by Roberts in obedience to the request in the letter, with which to pay for the Brewer land. It was proven in connection with these papers that Roberts was a physician residing in Houston at the date of these transactions, and engaged in buying and selling land, and that Junker was at that time a land agent residing at Beaumont. It was proven that Roberts died in 1885; that the entries in the account book, which showed it to be a book of cash entries, were all in Roberts' handwriting, and both letter and account book were found among Roberts' papers and were evidently what they purported to be. The entries in the...