Dittman v. Cornelius

• Decision Date: 30 November 1921
• Docket Number: (No. 251-3455.)
• Citation: 234 S.W. 880
• Parties: DITTMAN v. CORNELIUS et al.
• Court: Texas Supreme Court

234 S.W. 880

DITTMAN v. CORNELIUS et al.

(No. 251-3455.)

Commission of Appeals of Texas, Section B.

November 30, 1921.

Error to Court of Civil Appeals of First Supreme Judicial District.

Trespass to try title by Anna Dittman against W. D. Cornelius and others. Judgment denying plaintiff relief, save as to lands as to which defendants disclaimed, was affirmed by the Court of Civil Appeals (218 S. W. 109), and plaintiff brings error. Judgment of the district court and the Court of Civil Appeals reversed, and judgment rendered for plaintiff for the entire tract sued for.

Gaines & Corbett, of Bay City, and W. S. Strickland, of Eagle Lake, for plaintiff in error.

J. W. Conger, of San Antonio, for defendants in error.

POWELL, J.

This is an ordinary action in trespass to try title, instituted in the district court of Matagorda county, Tex., by Anna Dittman, against W. D. Cornelius, G. B. Culver, trustee, A. G. Smith, J. W. Smith, and Minnie E. Smith, seeking judgment for the title and possession of a tract of 350 acres of land out of the east corner of a league in Matagorda county, Tex., granted by the Mexican government to Samuel Hoit on the 15th day of November, 1830. All the defendants filed a plea of general denial and not guilty. In addition to that, the defendant, W. D. Cornelius pleaded the three, five, and ten years statutes of limitation in bar of plaintiff's suit to recover any part of the land claimed by the defendants. By way of a trial amendment, which the court permitted defendants to file, they disclaimed as to a certain described 35-acre strip lying in the western part of the 350 acres described in plaintiff's petition. The case was tried before the court without a jury, who, as stated by the Court of Civil Appeals, rendered judgment as follows:

"In favor of plaintiff, Anna Dittman, for the land disclaimed by defendants, and against her for the remainder of the land described in her petition and claimed by defendants. The judgment also denies the defendants a recovery of any portion of the land in controversy upon their answers, and expressly denies defendant W. D. Cornelius a recovery of title upon his plea of limitation. Judgment was also in favor of plaintiff for all costs incurred up to the filing of the disclaimer by defendants, and against her for such costs as accrued thereafter. In other words, the effect of the judgment was to hold that neither plaintiff nor defendants had title to the land in controversy. It expressly decreed that plaintiff should take nothing by her suit against defendants, except for the land disclaimed by them, and also expressly decreed that defendant W. D. Cornelius take nothing under his plea of title by limitation."

Plaintiff perfected her appeal from said judgment to the Court of Civil Appeals, where the judgment of the trial court was affirmed. See 218 S. W. 109. The cause came to the Supreme Court on petition for writ of error by Anna Dittman, which was granted.

The defendants did not appeal from the trial court's judgment, and, as stated by the Court of Civil Appeals, in their brief conceded that they failed to show that they had any title to any part of the land sued for. They contended only that plaintiff showed no title in herself to this 350-acre tract.

The Court of Civil Appeals says that if Anna Dittman showed she had title to the land in controversy, it was its duty to reverse the judgment of the lower court, and render judgment for her. They further hold that Anna Dittman had a good record title to the land in controversy, if Mary A. L. Monroe secured a good title thereto under her deed from E. S. Bell, dated April 20, 1857. That court refers to a deed from George W. Smith, dated February 3, 1857, and as bearing upon the status of the record title to the land in controversy states:

"It is shown by the evidence that the title to the land in controversy passed by a regular chain of transfers from Samuel Hoit, the original grantee, to Sheldon E. Bell, and that so far as shown by the evidence such title is still in him or his heirs, unless the deed of E. S. Bell, by which he attempted to convey said land to Mary A. L. Monroe, had the effect to pass the title from Sheldon E. Bell to the said Mary A. L. Monroe, under whom appellant claims. In other words, unless it is shown that E. S. Bell, who conveyed the land to Mary A. L. Monroe, was the same party to whom the land was conveyed under the name of Sheldon E. Bell, the title to the land did not pass from Sheldon E. Bell to Mary A. L. Monroe by the deed of E. S. Bell, and as a consequence no title ever passed to appellant, who claims under Monroe, and in such event she could not recover the land in controversy in this suit."

Briefly stated, if Sheldon E. Bell and E. S. Bell are one and the same person, Anna Dittman has a good record title to all the land in controversy, and is entitled to judgment therefor. Does the record establish this identity?

The Court of Civil Appeals says such identity must be established by the evidence, either "conclusively" or to the "satisfaction" of the trial court. In summing up the evidence, that court states that it does not constitute "conclusive" proof that E. S. Bell and Sheldon E. Bell are one and the same person. We think the Court of Civil Appeals is in error in the rule of law it applies as to the quantum of proof necessary in this connection. They cite no case in support of their requirement for conclusive proof. They do refer to the case of White v. McCullough, 56 Tex. Civ. App. 383, 120 S. W. 1093, which held that, under the record in that case, where evidence was highly conflicting, one must recover, if at all, only when he has adduced evidence sufficient to convince reasonable minds that he has a title, as distinguished from an unsupported claim. That case expressly holds it is not necessary to remove all reasonable doubt on the subject.

It is the well-settled law of this state that similarity of names is sufficient to establish identity of persons when there is no evidence to the contrary, and no suspicion has been cast upon the transaction. We quote briefly in this connection from a few decisions of the Supreme Court of Texas, as follows:

In the case of Chamblee v. Tarbox, 27 Tex. 144, 84 Am. Dec. 614, Justice Moore says:

"Similarity of name is said to be some evidence of identity. * * * It cannot be questioned that this alone is ordinarily sufficient evidence of identity of a purchaser in a chain of conveyance as the subsequent vendor."

In the case of Lemberg v. Cabaniss, 75 Tex. 229, 12 S. W. 844, the Supreme Court says:

"Similarity of names is said to afford proof of identity, especially in the absence of evidence raising a doubt as to such identity of the person. 1 Greenleaf, § 575, and note; Chamblee v. Tarbox, 27 Tex. 145; McRee v. Brown, 45 Tex. 506; Shields v. Hunt, 45 Tex. 424."

In the case of Robertson v. Du Bose, 76 Tex. 1, 13 S. W. 300, Judge Henry holds:

"In the case of Chamblee v. Tarbox, 27 Tex. 144, this court said that similarity of name alone `is ordinarily sufficient evidence of identity of a purchaser in a chain of conveyance.' In the absence of evidence casting doubt upon the identity of a party to a conveyance of land, we think it ought to be held sufficient in every case, and the jury, if instructed upon the subject at all, ought to be told so."

Still further, the rule is splendidly stated by Judge Brown in the case of Jester v. Steiner, 86 Tex. 415, 25 S. W. 411, as follows:

"Similarity of name is held to be sufficient to establish identity of the person, when there is no evidence to the contrary, and no suspicion cast upon the...