Davis v. Roosvelt

• Decision Date: 23 April 1880
• Docket Number: Case No. 4064.
• Parties: G. W. DAVIS ET AL. v. JAMES A. ROOSVELT.
• Court: Texas Supreme Court

53 Tex. 305

G. W. DAVIS ET AL.

v.JAMES A. ROOSVELT.

Case No. 4064.

Supreme Court of Texas.

Apr. 23, 1880.

ERROR from Ellis. Tried below before the Hon. Geo. N. Aldridge.

Defendant in error, Roosvelt, brought this suit on the 13th day of December, 1871, in trespass to try title, against Robert Hodge, George W. Davis, plaintiffs in error, and others, to recover the possession of one league of land in Ellis county, claiming the title to, and the possession of, the same on the 1st day of January 1870, when defendants entered and took possession by force, ejecting plaintiffs, etc.

Davis filed his answer January 5, 1872. On September 15, 1879, he filed an amended answer and substitute for all other answers, presenting five issues: First, general issue; second, a plea of the statute of limitations of three years; third, of five years; fourth, of ten years; fifth, plea of purchase in good faith and deraigning title from Joshua James to T. J. McCray, and from him to the Telico Manufacturing Company.

The defendant in error replied: First, general denial; second, that the purchase money and obligations named in the deed from Joshua James to T. H. McCray, through whom defendant Davis claimed title, had never been paid; that an express mortgage lien had been retained in the deed to secure the payment of the purchase money; that McCray and his vendees having failed to pay the purchase money, said James, holding the superior title, had conveyed said land to Matthews, and he to said Roosvelt.

The other parties defendant did not appeal.

The intervenor, L. D. James, set up claim of title to one-half of the land as heir of his mother, Mary K. James, deceased, who was the wife of Joshua James, in the state of Louisiana, charging that John P. Watson held the land in trust for Mary K. James; that she was the equitable owner thereof, and that Roosvelt was a purchaser with notice of the claim.

To this plea of intervention the plaintiff Roosvelt replied: First, a general denial; second, that Mary K. James and Joshua James were man and wife, and that the deeds operate as an estoppel against intervenor; third, that Mary K. James died, leaving three children; and claiming that in any event said Roosvelt should recover one-half the land and the interest of Joshua James and C. L. James as heirs of their brother, etc.

There were two trials. On the first trial judgment was rendered in favor of George W. Davis. Plaintiff Roosvelt, and intervenor James, and defendant Hodge, appealed. The judgment was reversed.¹ Verdict and judgment in favor of the plaintiff Roosvelt; and defendant G. W. Davis and intervenor L. D. James each sued out a writ of error.

It was agreed by all the parties that the legal title to the land from Chambers was in John P. Watson on the 13th day of November, A. D. 1850.

The title from Watson to the defendant in error, Roosvelt, was as follows: Deed with general warranty from John P. Watson to Joshua James, dated November 2, 1859; deed with general warranty from Joshua James, joined by his son, C. L. James, to Oliver Matthews, dated September 1, 1868--the same being in payment of a debt owing by C. L. James to Matthews, and to satisfy a mortgage on the land, executed to Matthews on the 6th day of March, 1866, by Joshua James and his wife, Mary K. James; deed in usual form, with general warranty, from Matthews to the appellant, Roosvelt, d??ted October 31, 1868; consideration, $5,000 in hand paid. All of the deeds were duly authenticated and recorded in Ellis county. The plaintiff's in error, Davis', title was as follows: Deed from Watson to Joshua James, same as above in Roosvelt's title; conveyance from Joshua James to J. H. McCray, with general warranty, dated June 21, 1856, and reciting the consideration in the body thereof as follows, viz: “In consideration of a certain draft drawn by the said party of the second part (McCray) for the sum of $516.60 on M. D. Cooper & Co., New Orleans, La., and due and payable on the 8th day of July, 1856; also a note of hand for the sum of $4,659.44; also one other note for the sum of $5,000.37, due and payable on the 8th day of April, 1858, and also one other and the last note for the sum of $5,341.30, due and payable on the 8th day of April, 1859--the first note above described being due and payable on the 8th day of April, 1857,--all of said notes being drawn by said McCray, and payable to the order of J. James, and payable at the Bank of Louisiana, at New Orleans, and to bear eight per cent. interest after maturity;” and it was further recited in the deed that “the party of the first part (James) herein reserves a special mortgage and lien upon the land conveyed, to secure the payment of the foregoing described draft and notes,” which conveyance was authenticated and recorded in the Ellis county records, June 21, 1856. Plaintiff in error, Davis, read, as a part of his title, a quitclaim deed from T. H. McCray to the Telico Manufacturing Co., dated July 10, 1857, conveying to that company all his right, title, interest and claim in said land, etc.; also judgment in the district court of Ellis county against the company, by confession; execution, and levy on the land; and a quit-claim deed from the sheriff of Ellis county, for this league and other tracts, to appellee, Davis, for the consideration of $200; the deed reciting that the sheriff conveyed only “the right, title and interest of the company, etc.,” dated March 1, 1859.

Neither the draft nor notes given for the purchase money by McCray to James was ever paid.

Joshua James consented that his attorney, William Croft, of Corsicana, Texas, might cancel the sale with McCray upon McCray's paying the attorney's fee of $200, and supposed the trade was cancelled. This was anterior to the war and after the maturity of the draft and notes and McCray's failure to pay. The trade with McCray was never cancelled by William Croft, as supposed by Joshua James, who resided in the state of Louisiana, but the draft and notes were surrendered by William Croft to Ferris & Getzendaner, attorneys for Roosvelt, upon their paying to him his fee of $200; and the attorneys for Roosvelt brought the draft, and the protest thereof, and notes into court and offered them as evidence. The presentation of the draft in due time, and the non-payment thereof, was duly proven by the notarial protest. The notes showed no evidence of payment.

The certificate of authentication to the deed from Joshua James to Matthews was as follows, viz.:

STATE OF MISSISSIPPI, City of Vicksburg.

I, Lazarus Lindsay, commissioner in the said state appointed by the governor of the state of Texas to take acknowledgments of deeds, etc., to be used and recorded in the said state of Texas, duly commissioned and sworn, and residing in the said city of Vicksburg, do hereby certify that Frank T. Brooke personally appeared before me, and being duly sworn saith, that Joshua James and Clarence L. James, whose signatures appear to the amended instrument, severally acknowledged the same to be their act and deed for the consideration and purposes therein expressed, and that he, with L. D. James, the other witness, subscribed their names as witnesses thereto, at the request of the said grantors.

In witness whereof, I have hereto set my hand and affixed my official seal, this eighth day of September, 1868.

+----------------------+
                ¦[L. S.]¦LAZ. LINDSAY, ¦
                +----------------------+
                

Commissioner for Texas, in Mississippi.

The certificate of authentication to deed from Matthews to Roosvelt was of similar form.

James and wife, in their answer to a suit in Louisiana, prayed “that Mrs. James be decreed the owner of the Texas land,” etc. The court decreed “that John P. Watson, by good and sufficient title, transfer and reconvey to the said Mary K. James all of the land and real estate named in the said deed of trust, or acquired in his trust capacity, situated in the states of Louisiana, Texas and Mississippi, not heretofore disposed of.” The conveyance was not made to Mary K. James but to Joshua James.

Mrs. Mary K. James joined her husband, Joshua James, in the mortgage deed conditionally conveying the land to Oliver Matthews, reciting in the mortgage the said conveyance from Watson to Joshua James, warranting that they had good right to convey; reciting, also, that she released her dower and right of homestead in the land, and declaring to the officer, after the conveyance was fully explained to her privily and apart from her husband, that it was her act and deed, and that she wished not to retract it.

S. C. McCormick for plaintiff in error James.

I. In the absence of a statute specially prescribing the character of seal to be used by the commissioners of a particular state of the Union in authenticating their official acts, the commissioners of such state should be required to use the same kind of seal for authenticating their official acts that commissioners of other states of the Union or of territories contiguous to the Union are required by statute to use. This rule obtains upon principle and by legislative construction. R. S., art. 547.

II. Section five of the act of December, 1861 (1 Pasch. Dig., art. 3771), prescribing the requisites of the seal which commissioners of deeds for the Chocktaw, Chickasaw and Creek nations of Indians should use to authenticate their official acts, is to be taken as the law prescribing the requisites of the seal that commissioners of deeds for the state of Mississippi should, after the date of the said act, use in authenticating their official acts as commissioners. 1 Pasch. Dig., arts. 3763, 3771; 1 Pasch. Dig., arts. 3762-3771.

III. The deed of Joshua James and C. L. James to Oliver Matthews, and the deed of Oliver Matthews and wife to James A. Roosvelt, introduced in evidence by the defendant in error, were not lawfully authenticated for record; and the court erred in allowing the defendant in error to put them in evidence, over the objection...