Davidson v. Wallingford

• Decision Date: 14 November 1895
• Parties: DAVIDSON et al. v. WALLINGFORD et al.
• Court: Texas Supreme Court

32 S.W. 1030

DAVIDSON et al. v. WALLINGFORD et al.

Supreme Court of Texas.

November 14, 1895.

Error to court of civil appeals, Third supreme judicial district.

Action of trespass to try title by T. J. Wallingford and others against W. L. Davidson and others. From an affirmance by the court of civil appeals (30 S. W. 286) of a judgment for plaintiffs, defendants bring error. Reversed.

Sims & Snodgrass, for plaintiffs in error. T. J. White and J. P. Ledbetter, for defendants in error.

GAINES, C. J.

This suit is an action of trespass to try title, and was brought by the defendants in error to recover of plaintiffs in error a tract of 640 acres of land, patented to W. W. Wallingford by virtue of a bounty warrant issued to him as a soldier of the republic on the 2d day of July, 1838. The defendants pleaded not guilty and the statute of limitations of five years. The plaintiffs claimed the land in controversy as the heirs of the patentee, and in support of their title introduced in evidence the deposition of T. J. Wallingford, who testified, in substance, that members of the family had told him that W. W. Wallingford had resided in Gonzales county, and that he died in 1846, on his way to Mexico; that his father and mother were both dead, and that he left brothers and sisters, surviving him, eight in number; that the witness was a son of one Nicholas Wallingford, one of the brothers of W. W. Wallingford who was dead; that the plaintiff L. B. Wallingford was also a son of Nicholas, and that the other plaintiffs were the nephew and nieces of the witness. Sundry portions of the deposition of this witness were objected to, but were admitted by the court. Exceptions were taken, and the rulings of the trial court in admitting the evidence were assigned as error in the court of civil appeals and in this court.

We think none of the objections were well taken. The interrogatory objected to, as shown by the defendants' bill of exceptions No. 2, in our opinion cannot be deemed leading, but, if so, the fact elicited by it was testified to by the witness in other parts of his deposition, so that, if the admission of the answer was erroneous, the error was harmless. It was competent to prove the death of W. W. Wallingford by the declarations of members of the family who were themselves dead. The fact that he once taught school in Gonzales county is, in view of the issues developed by the testimony, irrelevant, but is so utterly without bearing on the case, in any possible aspect, as to render all the objections to it frivolous. It could not possibly have prejudiced the defendants.

Under the plea of not guilty the defendants claimed title to the land under a transfer of the certificate from W. W. Wallingford to one P. B. Bickford, claimed to have been made before the location of the survey. P. B. Bickford was the husband of E. J. Bickford, one of the defendants, and had been dead some years when the suit was brought. In support of this defense the defendants relied mainly upon the testimony of Mrs. E. J. Bickford, whose depositions were taken by them, and offered upon the trial. She testified that her husband had possession of two certificates granted to W. W. Wallingford, one of which was located upon the land in controversy, and that he claimed to own them. She also deposed that he "frequently spoke of owning the certificates, and of the transfer of them from W. W. Wallingford. He said he lost the transfer of them while crossing the Colorado river." Upon objection on part of the plaintiffs, the testimony quoted was excluded. The testimony was clearly hearsay, and there was no error in the court's ruling. The answers of the witness which were objected to, as shown by defendants' bills of exceptions Nos. 10 and 11, were subject to the same objection, and were properly excluded.

It was proved that, about five years before the suit was brought, one E. M. Phelps leased the land to E. Y. Thompson, who was one of the defendants in the suit, and that Thompson went into possession under the lease, and continued in possession until the time of the trial. Shortly after the lease was made, Phelps sold the land to Mrs. Bickford, one of the defendants. The lease contained a stipulation that, upon the termination of the lease, the lessor should pay Thompson for such improvements as he might put upon the premises, not to exceed in value $1,000; and, also, that, in the event Phelps determined to sell the land, the lessee should have a prior right to purchase. The defendant Thompson, being upon the stand as a witness for the defendants, testified upon cross-examination, in effect, that he had been willing to turn over the land to whosoever had the better title, and would pay him for his improvements, and that he had an agreement with the plaintiffs' attorneys that if they gained the case they would pay him for his improvements. This testimony was admitted over the objection of defendants, and we think that this was error. Upon the conveyance by Phelps to Mrs. Bickford, Thompson became her tenant, and he certainly remained such until he repudiated the lease. Neither willingness to turn over the premises to whosoever had the better right, nor the promise of plaintiffs' attorneys to pay him for his improvements if they recovered the land, in any measure affected this relation.

It was error, for the same reason, to admit Thompson's testimony that Phelps never offered to sell him the land. It does not appear that he ever offered to buy. But, even if it did so appear, we do not see that the fact would have affected the rights of the parties. Phelps' violation of his agreement to give him a preference in case of a sale would, at most, have entitled him to abandon the lease. At all events, it is clear that, as long as he remained upon the land, he continued the tenant of Mrs. Bickford and of her grantees, her codefendants in the suit. Heflin v. Burns, 70 Tex. 347, 8 S. W. 48; Hearne v. Lewis, 78 Tex. 276, 14 S. W. 572.

There was no error in the exclusion of the deed from Mrs. Bickford to Wertheimer. The certificate does not show that the person who acknowledged the deed was either known to the officer, or proved before him to be the person whose name was signed to the conveyance. Since the Revised Statutes went into effect, the certificate of the officer must show that the person making the acknowledgment was known to...