Cox v. Hart

• Decision Date: 16 May 1892
• Citation: 36 L.Ed. 741,12 S.Ct. 962,145 U.S. 376
• Parties: COX et al. v. HART
• Court: U.S. Supreme Court

145 U.S. 376

12 S.Ct. 962

36 L.Ed. 741

COX et al. v. HART.

May 16, 1892.

STATEMENT BY MR. JUSTICE HARLAN.

Eugene Williams, for plaintiffs in error.

W. Hallett Phillips, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

This was an action of trespass to try the title to certain lands in McLennan county, Tex., the boundaries of which are fully given in the pleadings and in the judgment. They are also described generally as 'being the same tract of land patented by the state of Texas to the heirs of James Stewart on the 2d day of July, 1849, by patent No. 379, volume 5.'

On the 2d of July, 1849, the state issued 'to the heirs of James Stewart, deceased, their heirs and assigns,' two patents, each for 960 acres of land, in McLennan county; patent 'No. 379, vol. 5,' describing the land embraced in it as 'being in Milam district, on the waters of Bull Hide creek and Cow bayou, about 12 2/1 miles S. W. from Waco village, by virtue of bounty warrant No. 308, issued to James Stewart by William G. Cook, adjutant general, on the 9th day of August, 1847,' etc.; and patent 'No. 380, vol. 5,' describing the land embraced in it as being in 'Milam district on Bull Hide creek, about eleven miles S. W. by S. from Waco village, by virtue of bounty warrant No. 308, issued by William G. Cook, adjustant general, on the 9th day of August, 1847,' etc. The relative situation of the two tracts to each other appears from the following copy of a map proven to be a correct draft from a report of survey made under the order of court:

The defendant J. P. Williams filed a disclaimer of any title to the lands here in dispute, but alleged that he held a portion of them under a certain lease from the defendant Cox. Other defendants answered by demurrer, general denial, pleas of not guilty, and limitation, and some of them suggested improvements made in good faith, for the value of which, in the event the plaintiff succeeded in the action, they asked judgment under the statute of Texas.

The jury found that the appellee, Hart, the plaintiff below, was entitled to the land in controversy; that the defendant Cox had made valuable improvements upon 700 acres of it, worth $6,250, and the defendant Echols on 325 acres of it, worth $3,750; that the plaintiff was not entitled to rents; and that, without the improvements, the lands held by Cox were worth $10,500; those held by Echols, $4,875.

In conformity with the verdict it was adjudged that the defendants Cox and Echols were possessors in good faith of the lands held by them, respectively; that no writ of possession should issue for those tracts before the expiration of one year from the date of the judgment unless the plaintiff paid to the clerk of the court for Cox the sum of $6,250, and for Echols the sum of $3,750, with interest; that, if he neglected for one year to pay such sums, with interest from the date of the judgment, and if Cox and Echols, within six months after the expiration of the year, paid to the clerk, Cox the sum of $10,500, and Echols the sum of $4,875, then the plaintiff should be forever barred of his writ of possession as against the defendant so paying, and from maintaining any action whatever against Cox and Echols, respectively, for the above-described tracts; that if Cox and Echols did not within six months after the expiration of one year from the judgment pay to the clerk the above respective sums for the plaintiff as above provided, writs of possession might issue in his favor against Cox and Echols, or against the defendant so failing, for the lands recovered by plaintiff in this action; and that writ of possession issue, as provided by law in ordinary cases, in favor of the plaintiff against all of the defendants for the land recovered by him in this action, except the tracts adjudged to be held in good faith by Cox and Echols.

Motions for new trial and in arrest of judgment having been overruled, a severance was had, upon notice, between the defendants, so that Cox, Tinsley, and Echols might prosecute this writ of error separately from their codefendants. The writ of error has been heretofore dismissed as to Echols.

At the trial below, the plaintiff, Hart, for the purpose of showing title in himself, introduced in evidence a copy of patent No. 379 to the heirs of James Stewart, followed by proof, in the deposition of Mrs. Catharine Stewart, that the only heirs of James Stewart, on the 12th of April 1854, were William H. Stewart and John T. Stewart, and that they were dead, Mrs. Stewart surviving them; a certified copy from the clerk's office of McLennan county of a deed by William H. Stewart, John T. Stewart, and Catharine Stewart, wife of William H. Stewart, dated April 12, 1854, purporting to convey to John De Cordova the land embraced in patent No. 379, which deed was filed for record May 8, 1854, and recorded two days afterwards; the original of a deed, dated September 7, 1858, by the marshal of the United States for the western district of Texas, to Edmond J. Hart, Barnett B. Hart, and Isaac N. Marks, which, it was claimed, conveyed all the right, title, and interest of De Cordova in the land in dispute; a deed by B. B. Hart to E. J. Hart, of date July 30, 1874, conveying to the latter all the right, title, and interest of the grantor in the partnership property, including real estate, personal property, and assets of every description; and a deed from I. N Marks to E. J. Hart, of date August 19, 1874, conveying to the latter all the grantor's real estate in Texas or elsewhere.

For the purpose of showing a common source of title with the defendants under De Cordova, the plaintiff also introduced a deed, dated May 29, 1884, from L. B. Davis, administrator of the estate of De Cordova, purporting to convey to Cox 960 acres of land patented to the heirs of James Stewart by patent No. 379; a deed from Cox to Tinsley, dated December 31, 1884, conveying an undivided half interest in the same land; and deeds to Echols from Cox and Tinsley, dated September 4, 1885, for 320 acres of the land in controversy.

The defendants introduced in evidence the original of a deed from Mrs. Catharine Stewart, Mrs. Fannie Finnerson, joined by her husband, William H. Finnerson, Virginia Sexton, and Josh H. McAllister to the defendants Cox and Tinsley, acknowledged November 16, 1889, (which was after the institution of this action,) before a notary public in Baltimore, conveying to the grantees therein the land described in patent No. 379; the above deed of 1884, from De Cordova's administrator to Cox, for the purpose, the bill of exceptions states, 'of showing in themselves the defendants' title and good faith improvements made on the land since defendants had possession thereof;' the deed from Cox to Tinsley of December 31, 1884, conveying an undivided half of the land; and the deeds from Tinsley and Cox to Echols, of September 4, 1885.

When this case was called for trial there was on file a deposition of Mrs. Catharine Stewart, taken by the plaintiff, as well as a copy of the above deed to De Cordova of April 12, 1854. The defendants moved for a continuance in order that they might take the depositions of Mrs. Stewart and E. J. Hart, Jr.,; the motion being based upon two affidavits made by Tinsley. One of those affidavits stated that Tinsley had, then recently, held a conversation with Mrs. Stewart, during which 'affiant by her statement was led to believe, and does believe, said deed to be a forgery, and that her evidence concerning the same will be material.' The application for a continuance was denied, and that action of the court is assigned for error. But the granting or refusing of such an application was in the discretion of the court, and its action in that regard cannot be reviewed on error. And it is here referred to only because of the supposed bearing upon other assignments of error of Tinsley's affidavit relating to the alleged deed to De Cordova.

The certified copy of what purported to be the deed of April 12, 1854, to De Cordova set out the specific boundaries of the lands in controversy, and also described them as lands containing 'nine hundred and sixty acres of land situated and being in Milam district, on the waters of Bull Hide creek and Cow bayou,' and as 'the same which were granted to the heirs of James Stewart, deceased, by virtue of bounty land warrant No. 308, issued to James Stewart by William G. Cook, adjutant general, under a patent from the state of Texas, No. 379, issued from the general land office upon the twenty-eighth day of February, one thousand eight hundred and fifty-four, as by reference thereunto had will more fully and at large appear.'

That deed appears to have been signed, sealed, and delivered in the presence of two witnesses named, and was certified by E. R. Sprague, commissioner of deeds for the state of Texas, resident in Baltimore, to have been personally acknowledged before him by the several grantors, to be their act and deed, (they being known to him as the individuals described as and professing to be the parties of the first part,) and that Catharine Stewart, being examined out of the presence and hearing of her husband, stated that she executed the same freely, voluntarity, and without being induced to do so by fear, threats, ill usage, or the displeasure of her husband. On the copy introduced there was no scroll or character showing that the commissioner affixed his seal to the original.

To the introduction of the copy the defendants objected, in different forms, and at various stages of the trial, substantially upon these grounds: (1) There was on file an affidavit of forgery, meaning Tinsley's affidavit used on the application for a continuance of the case. (2) It was not proven as an ancient instrument, because there was no evidence of possession, payment of taxes, or other act by any claimant under the deed, or by any...