Collins v. Weiss

• Decision Date: 22 April 1903
• Citation: Collins v. Weiss, 74 S.W. 46 (Tex. App. 1903)
• Parties: COLLINS et al. v. WEISS et al.
• Court: Texas Court of Appeals

74 S.W. 46

COLLINS et al. v. WEISS et al.

Court of Civil Appeals of Texas.

April 22, 1903.

Appeal from District Court, Jefferson County; J. D. Martin, Judge.

Action by Andrew J. Collins and others against V. Weiss and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

E. P. Turner, for appellants. Greer, Greer, Nall & Parker and Crane, Greer & Wharton, for appellees.

GILL, J.

This action was begun by the appellant on the 21st day of June, 1901, and is in the form of an ordinary action of trespass to try title. Plaintiffs asserted title to the land sued for as the heirs of Seaburn W. Collins, Sr., deceased. The petition disclosed that all the plaintiffs resided elsewhere than in Jefferson county, wherein the land was situated, and one of the plaintiffs, Mrs. Susan Miller, resided in New Mexico. The defendants, V. Weiss and P. Weiss, who resided in Jefferson county, answered by general demurrer, general denial, plea of not guilty, and pleaded limitation of three, five, and ten years. Defendant Lamar Cooper disclaimed. A trial before the court without a jury resulted in a judgment for defendants, and plaintiffs, having appealed, seek a reversal upon the grounds: First, that the court erred in overruling a motion for a continuance; second, in failing to render judgment for the plaintiffs on the facts; and, third, in refusing to grant a new trial on the ground of newly discovered evidence.

Plaintiffs were shown to be the heirs of Seaburn W. Collins, Sr., deceased, and as such entitled to judgment for at least a part of the land sued for, unless their ancestor had conveyed to Gadi West, under whom appellees claim, and with whose title they connect themselves. Defendants adduced in evidence an instrument purporting to be a deed from Simon Weiss to Seaburn Collins, Sr., upon the reverse side of which was written a conveyance from Seaburn Collins to Gadi West. The purported execution of the deed from Collins to West was witnessed by the purported signatures of Dillon Collins and Wm. Blewett, as subscribing witnesses. This instrument conveying the land to West was attacked by an affidavit of forgery filed at the hour of the trial. When offered in evidence, defendants were required to, and undertook to, prove its execution as at common law. The grantor and the two subscribing witnesses were shown to be dead. The deed was shown to be over 30 years old, being dated ____ day of ____, 1859, and to have come from the proper custody. The genuineness of the signature of the subscribing witness Wm. Blewett was shown without contradiction. Simmons, a brother-in-law of Seaburn Collins and of Dillon Collins, the other subscribing witness, after qualifying as to their handwriting, gave it as his opinion that both the signature of the grantor and that of Dillon Collins were genuine. This witness had had business transactions with the grantor, and had corresponded for years with Dillon Collins. The deed in question was actually placed of record in 1894, but on account of some irregularity the record was invalid. It was proven up and again placed of record just prior to the trial. The deed from Simon Weiss to Seaburn Collins was of date March 6, 1856, but was not recorded until September 1, 1894. On the issue of the genuineness of the deed to West, Seaburn Collins, Jr., one of the plaintiffs, became a witness, and testified that he was familiar with the handwriting of his father, Seaburn Collins, Sr., and of his uncle Dillon Collins, one of the subscribing witnesses; that the signature of neither was genuine. On cross-examination the witness admitted that he was only 11 years old when his father died, and that his death occurred in 1868. Plaintiffs offered no other evidence on the issue of forgery, and the trial court thereupon held that a preponderance of the evidence was in favor of the genuineness of the deed. In this we think the court was correct, and the assignment assailing the judgment as unsupported by the evidence is overruled.

In 1888, V. Weiss, without notice of the deed from S. Weiss to Seaburn Collins, Sr., for a valuable consideration, bought of the heirs of Simon Weiss five-sixths of the land in controversy, and secured deeds therefor. The trial court so found, and the finding is not assailed. So the issue of forgery, and the assignments affecting that issue, can in no event be material to more than one-sixth of the property in controversy.

But while the court's judgment may be correct upon the facts adduced in...