Cooke v. Avery

• Decision Date: 23 January 1893
• Docket Number: No. 72,72
• Citation: 147 U.S. 375,13 S.Ct. 340,37 L.Ed. 209
• Parties: COOKE et al. v. AVERY
• Court: U.S. Supreme Court

147 U.S. 375

13 S.Ct. 340

37 L.Ed. 209

COOKE et al.

v AVERY.

No. 72.

January 23, 1893.

Statement by Mr. Chief Justice FULLER:

This was an action of trespass to try title to a tract of land in Hunt county, Tex., brought by W. W. Avery, December 24, 1886, against J. H. Cooke, his wife, M. E. Cooke, and the Scottish-American Mortgage Company, in the circuit court of the United States for the northern district of Texas, the plaintiff alleging that he was a citizen of the state of North Carolina; that the defendants Cooke were citizens of the state of Texas; and that the mortgage company was an alien corporation, and a subject of Great Britain.

The petition averred that on the 25th of November, 1886, plaintiff was lawfully seised and entitled to the possession of the land in question, located in Hunt county, Tex., in the northern district of said state, and entitled to hold the same in fee simple, and that defendants Cooke unlawfully dispossessed him thereof, and still unlawfully withhold the same.

The mortgage company demurred, and also pleaded that on January 1, 1886, the defendants Cooke, who were at that time in possession of the land and seised of good title in fee simple, and had the right to convey the same, executed a deed of trust thereon to one Simpson, as trustee, to secure a loan of money made by the company to the Cookes. The other defendants answered to the merits, and subsequently, on Feb- ruary 13, 1888, defendant J. H. Cooke withdrew his answer, and filed a plea to the jurisdiction of the court, to the effect that the land had been conveyed to plaintiff by citizens of Texas on November 25, 1886, without consideration, and for the purpose of conferring jurisdiction; and on the same day, not waiving his plea to the jurisdiction, he answered: (1) Not guilty. (2) That he purchased the land in controversy from J. H. Payne, under whom the plaintiff claimed, 'in actual ignorance of any lien upon said land, and in the belief that said tract of land was the homestead of said J. H. Payne, and that no creditor of said Payne could acquire a judgment lien thereon. That this defendant, for more than twelve months before the commencement of this suit, had actual adverse possession of said land in controversy, and that during said period defendant made upon said land permanent and valuable improvements, in good faith, as follows: [The alleged improvements were enumerated, and the total value stated to be $11,900.] That said tract of land, without said improvements, is of the value of $2,000, and by said improvements the same is enhanced in value by the cost or value, aforesaid, of said improvements. Defendant prays for the value of said improvements, if plaintiff recovers said land,' etc.

On February 11, 1889, plaintiff filed his amended original petition, which further alleged that plaintiff and the defendants derived title from one J. H. Payne as a common source; that defendants deraigned title through a certain deed executed by Payne and his wife January 2, 1886, while the plaintiff claimed title under an execution sale upon a judgment recovered against Payne January 17, 1882, in case No. 198, in the circuit court of the United States for the northern district of Texas, at Dallas, in favor of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, partners under the firm name of Deere, Mansur & Co., for the sum of $717.93 and costs of suit, all the proceedings upon and in reference to which were fully set forth. Plaintiff further alleged that by reason of certain laws of the United States and rules of the circuit court of the United States for the northern district of Texas, which were specifically referred to, the judgment was a lien upon the property from the date of its rendition, or became such on the date the abstract thereof was recorded and indexed in Hunt county, February 9, 1882, (as set out,) and continued to be a lien up to the date of the sale by the marshal, by reason whereof plaintiff had a superior title to the property, but that defendants denied that the judgment was ever a valid lien on the property under said laws and rules; and this constituted the controlling question in the case, upon the correct decision of which plaintiff's title depended. Plaintiff therefore averred that this suit arose under the laws of the United States and the rules of the circuit court, and that the circuit at the institution of the suit had, and still has, jurisdiction thereof, without regard to the citizenship of the parties thereto.

On June 8, 1889, the defendants Cooke demurred to that part of the amended original petition treating of jurisdiction, and further pleaded 'that, if they are not the owners of the land in controversy, the title thereto is outstanding in one Y. D. Harrington, to whom it was conveyed by said J. H. Payne before the lien under which plaintiff claims attached; and defendants deny all the averments of said petition.'

On the same day plaintiff demurred and excepted generally and specially to defendants' plea to the jurisdiction, and denied its allegations, and also replied to defendant J. H. Cooke's original answer by general and special demurrers or exceptions, and a general denial.

The cause came on for trial June 8, 1889, and, the court having heard and disposed of the several demurrers and exceptions, the trial was proceeded with.

The plaintiff introduced in evidence a judgment of the circuit court rendered January 17, 1882, in favor of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, against J. H. Payne, in cause No. 198, for the sum of $717.93, of which the sum of $682.13 was directed to draw interest at the rate of 10 per cent. per annum, and the sum of $35.80 at the rate of 8 per cent. per annum, and for costs; and also a general index of all judgments rendered in the court, which showed, under the proper letter, that the judgment in favor of Deere, Mansur & Co. against J. H. Payne was entered in Minute Book No. 1, p. 534; also an execution issued on the judgment March 3, 1882, returned, 'No property found,' and an execution issued August 11, 1886, under which the land in controversy was levied on by the marshal, August 12, and sold by him September 7, 1886, to Charles C. Cobb and John M. Avery; also the marshal's deed to said Cobb and Avery, made pursuant to the levy and sale, and dated September 7, 1886. Plaintiff also introduced the papers in case No. 198, including the original petition, which retition was indorsed: 'In circuit court of United States. No. 198. Deere, Mansur & Company vs. J. H. Payne,'—which indorsement was also on all the other papers in the cause; and the citation which was duly served on Payne, notifying him to answer the suit in case 'No. 198, of Deere, Mansur & Company, a firm composed of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, against J. H. Payne, defendant.' The petition showed that the suit was brought on a promissory note which was attached as an exhibit, and was dated April 16, 1880, executed by J. H. Payne, and payable to the order of Deere, Mansur & Co. Plaintiff further offered in evidence a certified copy of an abstract of the judgment in case No. 198, and a certified copy of the index of the abstract from the records of Hunt county. The certificate of the clerk of the county court of that county stated that said certified copies were true copies of the abstract recorded in the Judgment Record Book No. 1, p. 47, of Hunt county, and of the index, both direct and reverse, referring to said page 47 of said Judgment Record Book, as appeared from the index in his office. The certified copy of the abstract was as follows:

'Circuit court of the United States for the northern district of Texas, at Dallas.

I, A. J. Houston, clerk of the circuit court of the United States for the northern district of Texas, at Dallas, do hereby certify that in said court, on Tuesday, January 17th, 1882, the plaintiffs recovered a judgment against the defendant for the sum of $717.93, of which the sum of $682.13 shall draw interest from said date at ten per cent. per annum, and the balance, $35.80, shall draw interest at eight per cent. per annum, together with the costs by plaintiffs incurred; all of which said judgment and costs is yet due and unpaid by the defendant in case No. 198, and styled Deere, Mansur & Company, Plaintiffs, vs. J. H. Payne, Defendant; all of which appears from the records of said court now in my office.

'In testimony whereof, I hereunto set my hand, and affix the seal of said court, at Dallas, Texas, this 6th day of February, A. D. 1882, and of the independence of the United States the 106th year.

[Seal of U. S. circuit court, at Dallas, Tex.]

'A. J. Houston,

'Clerk of said Court.

'Filed for record Feb'y 9th, 1882, at 10 o'clock A. M. Recorded same day and hour.

'A. Cameron,

'Co. Clerk, Hunt Co., Texas.'

The certified copy of the direct and reverse index was as follows:

'Direct Index to Judgment Record, Hunt County, Texas.

'Plaintiffs' name: Deere, Mansur & Co.

'Defendant's name: J. H. Payne.

'Page of judgment record: 47.

'Reverse Index to Judgment Record, Hunt County, Texas.

'Plaintiffs' name: Deere, Mansur & Co.

'Defendant's name: J. H. Payne.

'Page of judgment record: 47.'

The defendants objected to the introduction of the abstract because it did not correctly give the names of the plaintiffs in the judgment, and did not show the amount still due thereon as required by law; and to the index, because it did not give plaintiffs' names. But the objection was overruled, and the abstract and index admitted. and defendants Cooke excepted.

Plaintiff then introduced a deed from Cobb and Avery to plaintiff dated November 25, 1886, and also, 'for the purpose of proving a common source of title, and for no other purpose,' a certified copy of the deed from Payne and wife to defendant J. H. Cooke, dated January 2, 1886. It...