Connolly v. Hammond

• Decision Date: 01 January 1879
• Citation: 51 Tex. 635
• Parties: JAMES CONNOLLY ET AL. v. B. F. HAMMOND ET AL.
• Court: Texas Supreme Court

51 Tex. 635

JAMES CONNOLLY ET AL.

v.B. F. HAMMOND ET AL.

Supreme Court of Texas.

1879.

APPEAL from Robertson. Tried below before the Hon. Spencer Ford.

Suit brought by Hammond and Hamman to recover the Moffitt league of land.

The opinion states sufficiently the facts applicable to the law as decided, except the discrepancies which exist in the name of Livermore in the two powers of attorney which were referred to in plaintiff's replication. The power bearing date October 4, 1838, was made to Alexander H. Livermore, and the one made February 25, 1839, to Amos H. Livermore. The replication states that these were different men, as their names indicate; “that these powers embraced only in part the same land, and each included land not described in the other, to wit, the first named, one-half of a league in Falls county, titled to Samuel W. White, not referred to in the second, and the second, one league granted to James S. Steele, not mentioned in the first; but if it be true, as insisted on by appellants, that there is a mistake in names, and the two powers are in truth made to the same person, that by the execution of the second the first was revoked; that the deed made by ‘A. H. Livermore, as the agent of James S. Steele,’ to James Bailey, under which appellants claim title, on the 4th of June, 1839, was made by Alexander H. Livermore by virtue of his power of October 4, 1838, to which the deed makes special reference as the authority by virtue of which it was executed, and which was recorded in Robertson county on the same day on which the deed was; that the deed made to Bailey embraces the White land not included in the second power.”

Defendant on the trial proved payment of taxes since 1848 and possession of the land since 1869. The briefs in this case were, on both sides, carefully prepared and exhaustive in regard to the many assignments of error made. Only so much is given as will convey the views of counsel on the points noticed in the opinion.

There were verdict and judgment for plaintiffs, from which Connolly appealed.

H. D. Prendergast, for appellants.

I. The court erred in permitting plaintiffs to introduce and read in evidence their deeds from the heirs of James S. Steele in rebuttal to title introduced by defendants, first, because plaintiffs had closed their case with the deed from the Moffitt heirs; second, because this Steele title appeared on its face to have been purchased after the institution of the former suit, and after the date of the trespass and ouster, as charged in the petition and as stated in the bill of exceptions. (Menifee v. Hamilton, 33 Tex., 690;Markham v. Carothers, 47 Tex., 27; 2 Phill. Ev.; 1 Greenl., (Redf. ed.,) 469 a; McCool v. Smith, 1 Black, (U. S.,) 459; Tyler on Eject., pp. 76, 471; Baylor v. Neff, 3 McL., 302; 8 Tex., 450;7 Tex., 57.)

In ejectment, or trespass to try title, it must appear that the title to the premises was in the plaintiffs at the time of the trespass and ouster as alleged in the petition. The trespass is alleged prior to date of plaintiffs' deeds. (Tyler on Eject., p. 383; 8 Pet., 214;Coxe v. Joiner, 3 Bibb, 297;Lee v. Salinas, 15 Tex., 497;Hearne v. Erhard, 33 Tex., 66.)

II. The court erred in giving the sixth clause of the charge and in refusing the sixth special charge asked by defendants, because the charge makes actual knowledge of the fraud necessary in James S. Steele to start limitation against him without reference to what he might have learned by reasonable diligence, and because there is no evidence to support said charge. (Ripley v. Withee, 27 Tex., 17;Munson v. Hollowell, 26 Tex., 475; 5 Metc., 467; Barnett v. Kelly, 31 Tex., 480;28 Tex., 145;17 Tex., 143; Story on Agency, secs. 210, 253-256; Kerr on Fraud, 311; Humbert v. Trinity Church, 24 Wend., 617, marg. pp. 618, 619; Pearson v. Burdett, 22 Tex., 121, 122.)

Davis & Beall and William H. Hamman, for appellees.

I. That which was originally void, does not by lapse of time become valid. (Broom's Leg. Max., p. 132; 2 Bouv. Inst., sec. 1321; Mason v. Russell's Heirs, 1 Tex., 730;De Leon v. White, 9 Tex., 603;Erskine v. De la Baum, 3 Tex., 416, 423;Gregg v. Sayre, 8 Pet., 248; 1 Story's Eq., sec. 306.)

II. A void act can never be confirmed. (Story on Cont., sec. 162; 1 Story's Eq., sec. 306; 2 Coke's Comm., 295 b.)

III. The land was unoccupied in 1839 and until 1869, and a suit for its recovery could not have been maintained during the time the civil law was in force in Texas. By the law of Texas in 1839, good faith, just title, and continued uninterrupted possession for a determinate time were essential to constitute prescription. (White's Land Law in California, Oregon, and Texas, vol. 1, pp. 91, 92, and vol. 2, pp. 82, 83.)

IV. James S. Steele and those who succeeded him were ignorant of the fraud, and by the exercise of no reasonable diligence could they have discovered it, and they are not affected by it. The contract made by Bailey with Livermore to reconvey and the sheriff's deed were never recorded in Robertson county. There is no evidence in the record that would put a party on notice. (Munson v. Hollowell, 26 Tex., 479;Ripley v. Withee, 27 Tex., 17;Emerson v. Navarro, 31 Tex., 334;Carlisle v. Hart, 27 Tex., 354;Meader v. Norton, 11 Wall., 458;Gregg v. Sayre, 8 Pet., 249;Reese v. Medlock, 27 Tex., 124;Reeves v. Dougherty, 7 Yerg., 222, 238, 1 Stark. Ev., 9th ed., 537, 538, (589,) 541, (593,) note t;Cooke v. Bremond, 27 Tex., 460;McDowell v. Young, 12 Serg. & R., 129;Meeley v. Collins, 41 Cal., 663;Michoud v. Girod, 4 How., 560;Shannon v. White, 6 Rich. Eq., 100-102; Thrower v. Cureton, 4 Strobh. Eq., 158; Doggett v. Emerson, 3 Story, 740;Homer v. Fish, 1 Pick., 438;Welles v. Fish, 3 Pick., 74;Costigan v. M. & H. R. R. Co., 2 Denio, 616.)

V. Appellees deraign title to the land in controversy from the widow and child of Robert Moffitt, deceased, to whom the land was originally granted, and the fact of his marriage was material.

The evidence introduced by appellants to prove that Robert Moffitt executed a deed to William H. Steele, could not be accepted by the court as establishing the issue so as to authorize the court, under any view of it, to withdraw the issue from the jury; but the evidence was necessarily submitted to the jury in connection with the issue of marriage. (1 Greenl. Ev., (Redf. ed.,) sec. 49; Stephens v. Hix, 38 Tex., 656;Ross v. Gould, 5 Greenl., 204; 1 Phill. Ev., (Cow. & Hill's ed.,) pp. 810, 812, note 220, and authorities cited.)

VI. The order in which evidence is admitted and the time when it may be admitted are matters of practice, controlled by the court during the trial. The party who complains must show that he was surprised and prejudiced by the action of the court. (Martin v. Parker, 26 Tex., 256;Hampton v. Dean, 4 Tex., 459;Pridgen v. Hill, 12 Tex., 374;Markham v. Carothers, 47 Tex., 27; 1 Greenl. Ev., (Redf. ed.,) sec. 469 a; 2 Phill. Ev., (Cow. & Hill's ed.,) pp. 914, 915; Wright v. Willcox, 9 C. B., 650; Gosley v. Gosley, 2 Mo. & R., 243; 1 Stark. Ev., 9th ed., 553, (607,) 554, (608,) and notes; Sturt v. Mobbs, Car. & M., 1; Reed's Practical Suggestions.)

VII. In an action of trespass to try title the plaintiffs may rely--by setting it up in an amendment--upon a title acquired after the institution of their suit, and in a second suit they can rely on as many titles as they may have seen proper to purchase before or since the first suit was filed. (Tyler on Eject. and Adv. Poss., pp. 399-403; Barrows v. Kindred, 4 Wall., 399;Hunter v. Morse, 49 Tex., 219.)

VIII. The object of the suit is to try the ownership of the property,--not the character of the title by which it is evidenced. (Hart v. Turner, 2 Tex., 374;Easterling v. Blythe, 7 Tex., 214;Peevy v. Hurt, 32 Tex., 153.)

GOULD, ASSOCIATE JUSTICE.

Appellees Hammond and Hamman, in March, 1875, brought this their second action of trespass to try title to the Robert Moffitt headright league, the petition being in the usual form, not setting out their title.

By the pleadings of the defendants it appeared that they claimed title as follows:

1. Deed from Robert Moffitt to W. H. Steele, of date August 7, 1835.

2. Deed from W. H. Steele to James S. Steele, of date June 19, 1838.

3. Power of attorney from James S. Steele to Alexander H. Livermore, October 4, 1838.

4. Irrevocable power of attorney from James S. Steele to Amos H. Livermore, February 25, 1839.

5. Deed from James S. Steele, by A. H. Livermore, attorney in fact, to James Bailey, of date June 4, 1839; recorded in Robertson county the same day.

6. Deed from Bailey to Samuel Kimball, of date January 5, 1848; recorded in proper county November 8, 1850.

7. Deed from Kimball to Connolly for undivided half of the league, dated and recorded in 1857.

8. Deeds from heirs of Kimball for the other undivided half to defendant Hough.

To the answer setting up this chain of title plaintiffs replied, setting up the discrepancies in the name of Livermore and other objections to the validity of the power of attorney; also “that the conveyance made by A. H. Livermore, as the agent of James S. Steele, on the 4th of June, 1839, to James Bailey, was fraudulent and void; that it was made for the purpose of defrauding Steele, and without any consideration paid or to be paid by said Bailey to Livermore as agent of Steele, or to Steele, or to any one for him, or for his use and benefit, and upon the condition that Bailey would hold and own the title for the use and benefit of Livermore, and convey the land to Livermore, or any one designated by him, whenever he should demand such conveyance to be made; that appellants, and those from and through whom they deraign and claim title to the land in controversy, and with whom they are in privity of estate and blood, well knew and had notice at the time of the acquisition of their titles that the transfer from Livermore to Bailey was fraudulent and void; that the appellants, nor either of them, nor those...