Dohoney v. Womack

• Decision Date: 24 May 1892
• Citation: Dohoney v. Womack, 19 S.W. 883, 1 Tex.Civ.App. 354 (Tex. 1892)
• Parties: DOHONEY v. WOMACK <I>et al.</I>
• Court: Texas Supreme Court

Page 883

19 S.W. 883

DOHONEY v. WOMACK et al.

Supreme Court of Texas.

May 24, 1892.

Commissioners' decision. Section B. Appeal from district court, Lamar county; E. D. McCLELLAN, Judge.

Action by William O. Womack and others against E. L. Dohoney to recover land. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

A. P. Dohoney, for appellant.

GARRETT, P. J.

Plaintiffs brought this suit, as the heirs of John D. Womack, Jr., and Archie Womack, to recover of the defendant, E. L. Dohoney, a two-thirds interest in a tract of 825½ acres of land of the S. M. Fulton survey, in Lamar county. They pleaded their title, deriving it from one W. W. Stell; recognized an interest of one third of the land in the defendant, as the grantee of Mrs. Mollie E. Pass, one of the heirs of John D. Womack, Jr., and Archie Womack; alleged that the deed of conveyance from W. W. Stell to John D. Womack, Sr., had been lost or mislaid; and that the defendant claimed the entire tract under an after deed from Stell, which inured to their benefit as well as his own. The defendant answered that he had purchased certain portions of the lands at tax sales; that he had bought 65 acres from one McCuistian; that he had purchased the entire tract from the said Mollie E. Pass and her husband; and that he had procured a deed therefor from the said W. W. Stell, which conveyed to the defendant a legal and equitable title, because no deed had ever been executed from Stell to the said John D. Womack, Sr. The case was tried without a jury, and resulted in a judgment for the plaintiffs for two thirds of the land, and a decree of partition. Defendant has appealed, and has assigned errors for which he seeks a reversal of the judgment of the court below. The court's findings of fact were as follows: "(1) That W. W. Stell had a valid title to all the land described in plaintiffs' petition, and that plaintiffs and defendant claim through him as a common source. (2) That W. W. Stell bargained and sold the said land, in 1864, to John D. Womack, Sr., and received the purchase money therefor, and that afterwards, about 1867 or 1868, he executed a deed to said Womack for said land, which deed is lost. (3) That on April 21, 1868, John D. Womack, Sr., by deed, sold and conveyed said land to Wm. H. Womack. (4) That on the 23d day of February, 1870, Wm. H. Womack, by deed, conveyed said land to John D. Womack, Jr., and Archie Womack. (5) That plaintiffs and Mrs. Mollie E. Pass are the sole surviving heirs of Archie and John D. Womack, Jr., and that, as such, plaintiffs inherited an undivided two-thirds interest and Mrs. Mollie E. Pass an undivided one-third interest in and to said land. (6) That on the 4th day of December, 1885, Mrs. Mollie E. Pass, joined by her husband, conveyed by deed all her interest in said land to E. L. Dohoney, the defendant. (7) That in June, 1887, W. W. Stell executed a quitclaim deed to the defendant, without any consideration, except as recited therein, to wit, the purpose to supply the lost deed from Stell to John D. Womack, Sr., mentioned in No. 2 of the preceding findings." There is also a statement of facts in the record.

W. W. Stell acquired his title to the land by deed from B. F. McCuistian, as administrator of his wife, Mary McCuistian, deceased. This deed was admitted in evidence, over the objection of the defendant, without proof of the proceedings in the probate court ordering the sale and confirmation thereof. A bill of exceptions was taken, and the action of the court assigned as error. The subsequent introduction of the same deed by the defendant was a waiver of the error in its admission in behalf of the plaintiffs. Again, as Stell was common source, it cannot be seen how the error was material, if it was error at all.

In order to lay the predicate for the introduction of secondary evidence to prove the contents of the alleged lost deed from W. W. Stell to John D. Womack, Sr., witnesses were permitted by the court to testify on the stand as to the execution and loss of such a deed, without a preliminary affidavit. The evidence of a witness on the stand may suffice instead of such affidavit. Parks v. Caudle, 58 Tex. 220; Trimble v. Edwards, (Austin term, 1892,) 19 S. W. Rep. 772.

But it is contended that the proof of the execution of the deed is not sufficient to sustain the finding of the court. W. W. Stell, the alleged grantor, testified: "About the year 1864 I sold the land described in plaintiffs' petition to John D. Womack, Sr. He paid me cash, the purchase money, which was about $8,000.00, in Confederate money. I thought until recently that I made him a deed for the land at the time he purchased the same; but recently I have investigated the records, and am now of the opinion that I only then made him a bond for title, from the fact that McCuistian did not make me a deed until 1867. Until I searched the records, I had firmly believed that I had made a deed, and now I have no other reason for believing that the deed was not made than the fact that I failed to find it by such search. I now think that I have made three different deeds to this land. Some time between the 1st day of April, 1867, and 1st day of April, 1868, F. W. Miner, representing the Womack side of the question, approached me about this land, and said his client wanted a deed from me. The matter was satisfactorily settled at that time, and I am confident that I made Womack a deed for the land...