Eliot v. Whitaker

• Decision Date: 31 October 1867
• Citation: 30 Tex. 411
• Parties: JACOB ELIOT v. MADISON G. WHITAKER.
• Court: Texas Supreme Court

30 Tex. 411

JACOB ELIOT

v.MADISON G. WHITAKER.

Supreme Court of Texas.

October, 1867.

Where there is anything in a deed which conduces to show what land was intended to be conveyed, it was properly left to the jury to determine whether the land so described was the “ locus in quo.”

The 53d section of the act about estates confers equity jurisdiction to decree a specific performance of the contracts of decedents for the sale of lands, and every intendment must be presumed in favor of their judgments. Pas. Dig. art. 1313, note 487.

Courts of equity have always regarded an imperfect or defectively executed deed as a mere title bond, or executory contract, which will be specifically enforced by such courts, and carried into full grants against the covenantor.

It is for the judge to determine upon the legal effect of all documentary evidence; and, if satisfied that it ought to have no weight with the jury, it is his duty to exclude it.

Where a party purchased, knowing that his grantor had previously sold the land to another, it is such a fraud as to destroy the conveyance as a muniment of title, under the 15th section of the act of limitation. Pas. Dig. art. 4622, note 1031.

ERROR from Navarro. The case was tried before Hon. JOHN GREGG, one of the district judges.

The record is exceedingly voluminous. In the original suit Madison G. Whitaker sued Jacob Eliot in an action of trespass to try title. There was an amendment, which brought in Croft and Robertson county as defendants. The verdict was against all the defendants Eliot only prosecuted error. The facts and points relied upon by the counsel are sufficiently noticed in the opinion of the judge.

William Croft, for plaintiff in error, relied upon the indefiniteness in the description in the deed to the plaintiff. Howard v. Morse, 6 How. 205.

The county court had no jurisdiction to grant specific performance. Jones v. Taylor, 7 Tex. 240;Peters v. Philips and Wife, Adm'rs, 19 Tex. 70;Booth, Adm'r, v. Todd, 8 Tex. 137; Kent v. Kelso, Dall. 523; Wynns & Lawrence v. Underwood, 1 Tex. 48;Miller v. Miller, 10 Tex. 319;Baker et al. v. Chisholm et al. 3 Tex. 157.

Hancock & West, for defendant in error.

LINDSAY, J.

This is an appeal from a judgment of the district court, rendered in an action of trespass to try title for a half league of land in Navarro county. The appellee brought his suit against the appellant, Jacob Eliot, in 1857, to the spring term of the district court, and at a subsequent term of the court he amended his pleadings, by introducing two new parties defendant, William Croft and the county of Robertson. Upon the trial, a verdict was returned, and a judgment rendered at the fall term, 1860, in favor of the plaintiff, against all the defendants jointly. From this judgment an appeal was prayed by the defendant, Jacob Eliot, alone, and the appeal bond executed by him and his sureties. The other defendants are seemingly resting contented with the judgment, and have taken no steps to disturb it. At the first blush, it being a joint judgment against all the defendants, it would seem that an appeal taken by one co-defendant from a joint judgment ought to inure to the benefit of all the co-defendants, unless some proceedings were had for a severance in the court below. Such a conclusion would follow from the principles of the common law. But as a matter of practice in this state a different rule seems to obtain. At least such a rule is recognized in the cases of Burleson v. Henderson, 4 Tex. 49, and Lacy v. Williams, 8 Tex. 182. From the entirety of this judgment, if, in investigating the assignment of errors by the appellant, we should find error enough to reverse the judgment, that reversal would inure to the benefit of the co-defendants, as well as to the appellant. But those co-defendants not being properly before this court on the appeal, we are not called upon to examine their special defenses and the errors which may have been committed against them on the trial of the cause. For a proper understanding of the law of this case, and the justice or injustice of the judgment below, it becomes necessary to state, as briefly as the pleadings and the voluminous record will allow, the main facts upon which the plaintiff relied for a recovery, and upon which the defendant based his defense.

It appears by the record, that on the 11th day of October, 1835, the government of Coahuila and Texas, by her commissioner, George Antonio Nixon, in Burnet's colony, granted to John Peoples, who petitioned to become a colonist as Jehu Peoples, a league of land in said colony, situated on Richland creek, a southwest branch of the Trinity, setting forth said league by metes and bounds. On the 30th day of September, 1837, the petition alleges that the grantee, Jehu or John Peoples, conveyed the northeast half of said league to Richard Sparks, the deed for which was duly recorded in Robertson county, on the 25th day of July, 1838, the boundary of which county then embraced the county of Navarro, where the land is now situated. Sometime in the year 1850, to wit, on the 27th day of August, S. F. Sparks and James M. Sharp, administrators of Richard Sparks, deceased, by virtue of an order of the chief justice of the county court of Nacogdoches (which court had made such order upon the petition of the plaintiff, Madison G. Whitaker, alleging that he held a written agreement with said Sparks for the conveyance to him of a league of land west of the Trinity, as soon as the land office was opened and grants could be made, and a deed, imperfectly executed by Sparks in his life-time, in partial compliance with said written agreement, attempting to convey the northeast half of the land in controversy), conveyed by deed to Madison G. Whitaker the northeast half of the league granted by George A. Nixon, commissioner, to Jehu Peoples, lying west of the Trinity river. This deed of the administrators of Richard Sparks, deceased, made under a decree of the chief justice of Nacogdoches county, was recorded in the county of Navarro, where the land lay, on the 12th day of April, 1856. The above is a succinct statement of the nature and character of the muniments of title upon which the plaintiff relied for the recovery of the land in controversy.

The defendant, Jacob Eliot, the only real appellant in this court, in his answer, insists that he is the legal owner of the John or Jehu Peoples league of land, and makes this exhibition of title, to wit: by deed from John or Jehu Peoples, bearing date the 12th day of November, 1850, duly recorded in Navarro county; also by deed, bearing date the 25th day of May, 1852, from the surviving wife and all the children of John or Jehu Peoples, then deceased, duly recorded, also in the said county of Navarro. In his answer, he denies all notice, actual or constructive, of the existence of the plaintiff's title, and alleges that, although the county of Navarro was organized in 1846, the deeds of the plaintiff were not put upon record there until April 12, 1856. He further alleges that, in 1852, he had instituted a suit against some tenants in possession, who were holding, of course, adversely to his claim, and that said suit was then still pending and undetermined. The defendant further alleges, that he had been in possession of the land in controversy, by his tenants, for more than three years before the institution of the plaintiff's suit, under title, or color of title, from the sovereignty of the soil. Upon the question of possession the defendant chiefly relied for a successful defense, after the plaintiff's muniments of title were all admitted by the court. A vast amount of proof was introduced, the consideration of which we are happily relieved from, as it was the peculiar province of the jury to weigh it, and to consider the force and effect of all testimony legally introduced on the trial.

In the progress of the trial below, various questions were raised as to the admissibility of testimony, and the rulings of the court upon these questions, in admitting and excluding testimony, are assigned for error in the record.

The appellant's counsel assigns for error the admission of a deed of conveyance from John or Jehu Peoples (for we must regard John and Jehu as the same identical man, from the pleadings and proofs of both plaintiff and defendant) to Richard Sparks. The objection of defendant's attorney to the introduction of this proof was, that it described the land therein attempted to be conveyed as lying on Red Land bayou, southwest of Trinity river, instead of on Richland creek, a southwest branch of the Trinity, as set forth in the grant to John Peoples. But the conveyance goes on to recite, that it was the northeast half of a league, granted to him as a colonist in 1835, by George A. Nixon, commissioner, according to the fact as it appears by the grant itself. This misdescription...