Clapp v. Engledow

• Citation: 10 S.W. 462
• Parties: CLAPP <I>v.</I> ENGLEDOW <I>et al.</I>
• Decision Date: 11 December 1888
• Court: Texas Supreme Court

10 S.W. 462

CLAPPv.

ENGLEDOW et al.

Supreme Court of Texas.

December 11, 1888.

Appeal from district court, Van Zandt county; FELIX J. McCORD, Judge.

Action to establish a lost deed, brought by Sarah F. Clapp against Robert Engledow and others. Trial to the court, and judgment for defendants. Plaintiff appeals.

F. B. Sexton, for appellant. Kilgore, Lively & Kilgore, for appellees.

WALKER, J.

The purpose of this suit was to establish the existence and contents of a lost deed alleged to have been executed by Amanda Johnson to Angeline M. Barrett in the latter part of the year 1872 or early in 1873. The appellant, who was the plaintiff, claims under mesne conveyances from Mrs. Angeline Barrett and her husband to their son Ralph Barrett, and from him to the plaintiff. The defendants are the heirs at law of Amanda Johnson. The petition also alleged that by the loss of said deed a cloud was cast upon her title; that defendants are setting up claim to the land; prayer that a decree be rendered supplying said deed, perpetuating the testimony of its contents, quieting her title against the defendants in said land, and vesting title thereto in her, etc. The defendants pleaded general denial, stale demand, and certain acts of L. J. Barrett and his wife, the alleged grantee in the alleged lost deed. The rulings upon the pleadings are not material, as the main fact in issue was the execution of the deed as alleged in the petition. On the trial the plaintiff proved by the said L. J. Barrett, husband of Mrs. Angeline Barrett, that the deed had been made as alleged; that it had been lost. A witness, Hamlet, testified to having read over the deed to the grantor when she requested him to sign it as a witness, and that he did sign it as a witness. The deed gave to Mrs. Barrett all the grantor's property, real and personal. He also speaks of her executing the deed. The testimony of this witness is somewhat obscure, which may be attributable to its being given by depositions. Simpson, a witness, testified to seeing such a deed a short time after the death of the grantor. Witness read it. Thinks he would know the signature of the grantor, but would not swear to it. The defendants, over objections, read in evidence, from the records of the probate court of Nacogdoches county, the inventory of the estate of Mrs. Amanda Johnson, filed and sworn to by said L. J. Barrett and his wife, Angeline, in which was included, as property of the estate, the identical tract of land the subject of this contention, and two other tracts of land in the state; to which plaintiff objected, for the reasons (1) that it tends to prove no issue in the case, the issue being the existence, loss, and contents, not the effect, of a deed from Amanda Johnson to Angeline M. Barrett; (2) that, if offered to prove admissions by Barrett, as tending to show no claim of title by him, it is inadmissible, because the lost deed which plaintiff is endeavoring to establish is charged to have been made to, and carries title by gift to, Mrs. Barrett, and admissions of the husband cannot be used to impair the wife's title; (3) if offered to contradict Barrett's depositions, and thereby affect his credit, it is inadmissible, because Barrett was not (on cross-examination) asked about or allowed an opportunity to explain said statements. The objections were overruled.

Two of the defendants, brothers of the grantor, testified to conversations with L. J. Barrett about the estate of their sister, in which their right to share as heirs in property outside of Nacogdoches county was recognized. It was shown that a short time before the alleged execution of the lost deed the deceased, Mrs. Johnson, had, by deed of gift, conveyed all her property, real and personal, in Nacogdoches county, to Mrs. Barrett, who was a niece of the deceased, and had been raised by her. The brothers of deceased also testified that the character of L. J. Barrett for veracity was bad. In direct examination they qualified as to their knowledge of Barrett's character for truth, and, after testifying that it was bad, on...