Chapman v. Kellogg

• Decision Date: 30 May 1923
• Docket Number: (No. 360-3197.)
• Citation: 252 S.W. 151
• Parties: CHAPMAN v. KELLOGG et al.
• Court: Texas Supreme Court

Page 151

252 S.W. 151

CHAPMAN v. KELLOGG et al.

(No. 360-3197.)

Commission of Appeals of Texas, Section B.

May 30, 1923.

Rehearing Denied June 27, 1923.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Trespass to try title by Mrs. Rose Kellogg and others against J. R. Chapman. Judgment for defendant was reversed and rendered by the Court of Civil Appeals (201 S. W. 1096), and defendant brings error. Judgments of the district court and Court of Civil Appeals reversed, and cause remanded for new trial.

Terry, Cavin & Mills, of Galveston, Davis & Ramsey, of San Augustine, and Oliver J. Todd, of Beaumont, for plaintiff in error.

W. D. Gordon, of Beaumont, for defendants in error.

POWELL, J.

This is an action in trespass to try title instituted on the 15th day of August, 1915, in the district court of San Augustine county, Tex., for the recovery of the A. G. Kellogg one-fourth league survey in said county. The suit was brought by the Kelloggs as heirs of the original grantee.

The defendant, J. R. Chapman, in the trial court, answered by a plea of general denial and not guilty. As found by the district court, Chapman had a complete chain of title from the sovereignty of the soil, if the two conveyances to be hereinafter discussed were valid and genuine. There was no possession of the land and no limitation question is involved.

The case was tried before a jury, to whom was submitted three special issues as follows:

"Question No. 1: `Did or did not A. G. Kellogg execute and deliver to William Coote, as a conveyance, the instrument purporting to be from Kellogg to Coote, and was it accepted by William Coote as a conveyance to him of the title to the land in controversy? If you find the affirmative of the issue, your will answer, "Yes." If you find the negative of this issue, you will answer, "No."'

"To this question the jury answered, `Yes.'

"Question No. 2: `Was or not the purported transfer from William Coote to Terry H. Cahal purporting to convey to Terry H. Cahal all the right, title, and interest of Coote to the land in controversy a genuine instrument of conveyance from William Coote mentioned in the Kellogg deed? If you answer this in the affirmative, the form of your answer may be, "Yes," If you answer in the negative, the form of your answer may be "No."'

"To this question the jury answered, `Yes.'

"Question No. 3: `Did or did not William Coote, prior to the 28th of February, 1838, rescind the deed from Kellogg to himself or retransfer to Kellogg, or his estate, the land in controversy? If you determine this in the affirmative, let your answer be, "Yes." If you determine this in the negative, let your answer be, "No."'

"To this question the jury answered `No.'"

In connection with aforesaid issues the trial court read a charge explanatory of the questions submitted, containing definitions, etc. The charge was accepted by counsel for all parties. No objection was urged to it, nor was any special charge requested, except one by counsel for Chapman. The record does not show whether the latter was given to the jury or not. At any rate, no objection to it is disclosed by the record. Therefore the case went to the jury upon a charge entirely satisfactory to all parties. No one asked a peremptory instruction, so far as the record discloses. The charge was most favorable to the Kelloggs, placing the burden of proof upon Chapman to establish the genuineness of the disputed deeds.

But, faced by jury findings which completely established the Chapman title, as above shown, counsel for the Kelloggs, in motion for a new trial, vigorously attacked the verdict as being without support in the record. The trial court overruled that contention and entered final judgment in favor of Chapman for the land in controversy.

Upon appeal to the Court of Civil Appeals, that court, in an opinion by Justice Brooke, reversed the judgment of the trial court and rendered judgment in favor of the Kelloggs for the land in suit. See 201 S. W. 1096.

The Court of Civil Appeals at one place states there is no evidence in the record to support the trial court's judgment. Then, in another place, that court says the judgment has no sufficient basis in the record. At any rate, it overthrew the verdict of the jury and rendered judgment as aforesaid. It not only held that Chapman had not sustained his title, but that he could not do so and should not be given another chance to do so. This was a rather unusual decision, in the latter regard, when the title depended upon the validity of two deeds which could be established by witnesses who might be located. We shall allude hereafter to the action of the Court of Civil Appeals in rendering rather than remanding this case, even if that court had been correct in its application of the law to the facts before it.

In an effort to eliminate the deed from Kellogg to Coote and the one from the latter to Cahal, Attorney Gordon, on behalf of the Kelloggs, filed an affidavit of forgery, attacking the same for lack of genuineness. This affidavit was followed up on the trial by various objections by affiant to the admissibility of aforesaid conveyances when they were offered in evidence by counsel for Chapman.

Counsel last above mentioned placed C. A. Beard, county clerk of San Augustine county, on the stand. He testified that there was a set of papers in his office and known as the "archives"; that he had custody of such archives, among which was an original deed from Kellogg to William Coote, conveying the land in controversy. This original deed from these archives was offered and admitted in evidence. It read as follows:

"A. G. Kellogg to Coote & Terry H. Cahal. Filed March 17, 1845. Selloe Tercero Dos Reales the Free State of Coahuila and Texas, Municipality of San Augustine. Par all Berneodo 1834 y 1836. This indenture, this third day of January, in the year of our Lord one thousand eight hundred and thirty-six, between Albert G. Kellogg, of the municipality and state aforesaid of the one part, and William Coote, of the same place, of the other part, witnesseth: That the said Albert G. Kellogg, for and in consideration of the sum of two hundred dollars to him in and paid at and before the sealing and delivering of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, and conveyed, and do by these presents grant, bargain, sell, and convey, unto the said William Coote, his heirs and assigns, all my right, title, and interest that I now have, or that the laws may entitle me to afterwards, to a tract or parcel of land lying and being in the municipality aforesaid, situated on the west bank of the Ayish bayou, fronting on said stream and joining William Coote's survey on the southwest, containing one-quarter league, being the aforesaid Albert G. Kellogg's headright of land which he obtained under the colonization law from George Antonio Nixon, commissioner for Lorenzo De Zavala's colony, said grant being dated the eighth day of June in the year eighteen hundred and thirty-five, to have and to hold said quarter league of land unto him the said William Coote, his heirs and assigns, forever, together with all and singular the rights, members, and appurtenances thereof to the same in any manner belonging, to his and their own proper uses and benefit forever in fee simple. And the said Albert G. Kellogg, for himself, his heirs and executors and administrators, the said bargained land unto the said William Coote, his heirs and assigns, forever, will warrant and forever defend the right and title thereof against themselves forever.

"In witness whereof the said Albert G. Kellogg hath hereunto set his hand and seal the day and year above written. Signed, sealed, and delivered in the presence of David Brown, assisting witnesses. Samuel Stivers.

                      "[Signed] Albert G. Kellogg. [Seal.]"
                

Chapman's counsel then offered in evidence a certified copy of aforesaid archive, in the exact words of the original, and certified as follows:

"The State of Coahuila and Texas, Municipality of San Augustine.

"I, John G. Love, primary judge in and for said municipality, certify the foregoing is a true copy of the original in the archives of the primary judge's court under my charge.

"Given under my hand this 2d day of February, A. D. 1836.

                  "[Signed]   John G. Love, Primary Judge."
                

Attorneys for Chapman next offered in evidence a conveyance indorsed upon and recorded with said certified copy, by terms of which transfer the said William Coote sold and conveyed all the land described in the certified copy to Terry H. Cahal, which said transfer, with the proof thereof, is as follows:

"State of Tennessee, Hardin County.

"Know all men by these presents, that I have, for a valuable consideration, transferred all my right and title to land described in the foregoing deed to Terry H. Cahal, of the county of Murry and state of Tennessee.

"Done this twenty-eighth day of February, eighteen hundred and thirty-eight, in presence of Austin Miller, George D. Morrow.

                           "[Signed] William Coote. [Seal.]
                

"County of San Augustine, the Republic of Texas.

"I, Charles Epps, clerk of the county court of said county, do hereby certify that William Lakey, a citizen of said county, and known by me to be a man of strict veracity and probity, appeared before me and after being duly sworn according to law says that the signature of William Coote to the above and foregoing transfer from William Coote to Terry H. Cahal is the true and genuine signature of the said Coote to the best of his knowledge and belief, being well acquainted with his handwriting and having often seen him sign his name.

"Given under my hand and seal of office this 17th day of March, A. D. 1845.

                  "[L. S.]               Charles Epps
                  "Clerk County Court, San Augustine County."
                

The certified copy last referred to, including the transfer to Cahal, was recorded in San Augustine county, Tex., ...