Cannon v. Cannon

• Decision Date: 12 November 1886
• Parties: CANNON <I>v.</I> CANNON and another.
• Court: Texas Supreme Court

3 S.W. 36

CANNON

v. CANNON and another.

Supreme Court of Texas.

November 12, 1886.

Appeal from Rockwall county.

This is a suit brought by W. S. and W. B. Cannon against Emberry Cannon, in the form of an action of trespass, to try title to certain premises described in the petition. Appellant answered by general demurrer and general denial, and pleaded specially that the land sued for was purchased by him from one G. B. Davis, who at the time made the deed to appellees for the use and benefit of appellant; that appellant was placed in possession of the said premises by said Davis, and had held the same continuously, and was still in possession of the same, and paid all taxes thereon, and held the said deed from Davis to appellees in his possession, and they, with full notice and knowledge of his rights, had accepted the trust, and held said premises for his use and benefit up to and until the institution of said suit. The appellant prays for cancellation of the pretended title of appellees, removal of the cloud from his title, and for general relief. Appellees filed a supplemental petition denying generally the allegations in appellant's original answer, and pleading specially that the conveyance was taken in the name of appellees for the purpose of hindering and defrauding the creditors of appellant, and was intended as a gift to appellees. They also pleaded statute of 10 years' limitation. Appellant filed supplemental answer demurring both generally and specially to the supplemental petition of appellees, and a general denial of its allegations. On May 3, 1886, the court overruled appellant's demurrers to appellee's supplemental petition, and on May 4, 1886, the cause was submitted to a jury, and resulted in a verdict and judgment for appellees. May 5, 1886, the appellant moved for a new trial, which being overruled by the court, he excepted, and gave notice of appeal, and 10 days were allowed in which to file a statement of facts; and having, within proper time, filed an appeal-bond and assignment of errors, he now brings the cause before this court for revision.

Allen & Vesey and T. L. Stanfield, for appellants.

The court erred in not sustaining defendant's special exceptions to plaintiff's supplemental petition filed November 6, 1885. The facts constituting the fraud must be stated.

The court erred in admitting in evidence certified copy of judgment rendered in the county court of Rockwall county. Copies of judgments from other and different courts having different jurisdiction stand no higher, as to the authenticity of the copy, than a copy of a recorded instrument, and should be filed with the papers of the cause, and information given to the opposite party. The copy of judgment was admitted over objections of appellant, without having been filed with the papers, and without any notice to appellant. Rev. St. Tex. art. 2257.

The court erred in admitting in evidence, over objection of defendant, an original execution and venditioni exponas, purporting to be issued out of the county court of Rockwall county on the nineteenth day of September, 1883, as shown by defendant's bill of exceptions No. 2. An original record or a paper of another and different court is entitled to no authenticity or standing unless found in the custody of the legal custodian. The instruments were admitted in evidence without notice, and without coming into court in the custody of the clerk or custodian thereof. 1 Greenl. Ev. §§ 484, 485; 1 Starkie, 195.

The court erred in admitting in evidence what purported to be a constable's deed to the land in controversy, without sufficient proof of the execution thereof.

The court erred in refusing to give the first special charge asked by the defendant. The defendant asked the court to charge the jury that if they believed from the evidence that on the fourth of November, 1875, the defendant having purchased the land in controversy from G. B. Davis, and paid to said Davis the purchase money therefor, and procured from said Davis a deed to W. S. and W. B. Cannon, the plaintiffs, and that said plaintiffs did not pay to Davis, nor have ever paid to defendant, said purchase money, then the effect of such conveyance, so made, would be to vest the equitable title to the land in the defendant, and in that case defendant would be entitled to recover the premises in controversy; and you will so find, unless you should believe, under the evidence and instruction hereafter given, that defendant was estopped from setting up such claim, or has subsequently parted with his title. Neill v. Keese, 5 Tex. 23; 2 Greenl. 267; 2 Story, Eq. 1201; Cole v. Noble, 63 Tex. 432; Hempstead v. Hempstead, 2 Wend. 109; 3 Wait, 33.

The court erred in refusing to give the jury special charge No. 2 asked by defendant. If the defendant paid the purchase money for the land, before he can be estopped from setting up his claim thereto, it must clearly appear, at the time the land was conveyed by Davis, that the deed was made to plaintiffs for the purpose of hindering, delaying, and defrauding his creditors, and placing the property beyond the reach of his just debts; and the burden of proving such fraudulent intent devolves upon the plaintiffs.

Word & Charlton, for appellees.

WILLIE, C. J.

The first assignment of error is as follows: "The court erred in not sustaining defendant's special exceptions to plaintiff's supplemental petition filed November 6, 1885." The special exceptions were three in number, and set up two separate distinct and independent objections to the petition. Which one of these objections the court should have sustained is not pointed out by the assignment. The proposition seems to refer to either the first or second exception; we cannot tell which. Besides, the assignment, if improper, cannot be aided by the proposition. It must stand or fall according as it complies with the rules; which this does not, and will not, therefore, be noticed.

The admission in evidence of the certified copy of the...