Edwards v. Barwise

• Decision Date: 18 November 1887
• Citation: 6 S.W. 677
• Parties: EDWARDS v. BARWISE.
• Court: Texas Supreme Court

6 S.W. 677

EDWARDS v. BARWISE.

Supreme Court of Texas.

November 18, 1887.

Appeal from district court, Tarrant county.

Action of trespass to try title to land by J. H. Barwise against C. O. Edwards. Verdict for plaintiff, and defendant appeals.

J. C. Scott and L. N. Hooper, for appellant. D. W. Humphries, for appellee.

GAINES, J.

This was an action of trespass to try title, brought by appellee against appellant. Plaintiff alleged that he was the owner of an undivided one-third interest in the land in controversy, and that he did not know who owned the other two-thirds. He prayed for the recovery of the possession of the entire tract, unless the defendant showed title to the other two-thirds, in which event he prayed for a partition. The pleas were a general denial, not guilty, the statute of limitations, and improvements in good faith. Neither party set forth his chain of title. The plaintiff obtained judgment for one-third of the land and for partition. The plaintiff, having introduced in evidence a deed from one Nance to E. D. Hurlburt & Co., to a one-third interest in the survey in controversy, was permitted, over the objection of defendant, to testify that the firm of E. D. Hurlburt & Co. was composed of E. D. Hurlburt and himself. The admission of this testimony is assigned as error. The ground of objection was that the fact had not been alleged in the pleading. The objection was not well taken. When a plaintiff in an action of this character pleads specially his title, and any link in the chain is dependent upon a fact resting in parol, such as heirship, etc., that fact should be alleged, otherwise he will not be permitted to prove it. But should the petition be in the statutory form, as in the present case, he will be permitted to adduce any competent parol evidence in order to establish his title, although the fact proposed to be established by such evidence be not specially pleaded. A different rule would require, in trespass to try title, one who claimed as heir, or through heirs, to set forth not only the fact of heirship, but also the entire chain of conveyances upon which he relied; and would thereby deprive him of the privilege conferred by the statute. The deed to Hurlburt & Co. showed title at its date in the firm to one-third of the land, and, by proving that plaintiff was a member of the firm, the testimony objected to showed title in him to one-sixth. The evidence was therefore admissible. If the defendant apprehended surprise, he could, by requiring an abstract to be filed, have been apprised of the facts upon which the plaintiff relied to make out his case.

Each party deraigned his title from the state and the defendant showed a clear right to one undivided two-thirds interest in the land in controversy. As to the one-third interest claimed by plaintiff, which was the matter actually contested, the title of both emanated from one John S. Smith, as the common source. In 1873 Smith conveyed to S. L. Hanna; and plaintiff introduced a consecutive chain of conveyances from Hanna down to himself. In 1882 Smith again conveyed a third interest to one Twombly, who was then the owner of the other two-thirds; and the latter subsequently conveyed the entire tract to the defendant. The deed from Smith to Twombly was in form a quitclaim, and contained no clause of warranty. Defendant claims, however, that Twombly bought without notice of the previous conveyance of Smith, and bought the land purporting to be conveyed, and not a mere change of the title. The deed from Smith to Hanna appeared from its file-mark and the clerk's certificate to have been filed and recorded in 1875, in Tarrant county, and re-recorded on the sixteenth of August, 1883. Twombly's deed from Smith was recorded April 22, 1882. Defendant's deed from Twombly was dated June 5, 1882, and was recorded June 8, 1883, before the re-recording of the deed to Hanna. Defendant testified that he paid Twombly the full value of the land at the date of his deed, and that he...