Ellis v. Lewis

• Decision Date: 08 June 1904
• Parties: ELLIS et al. v. LEWIS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

81 S.W. 1034

ELLIS et al. v. LEWIS et al.^*

Court of Civil Appeals of Texas.

June 8, 1904.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by George Lewis and others against J. T. Ellis and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Jacob C. Baldwin, for appellants. G. W. Graves and Clement & Garner, for appellees.

JAMES, C. J.

The action is one of trespass to try title to 320 acres in Harris county, surveyed by virtue of bounty certificate 6,024, issued by A. S. Johnston, Secretary of War, to William Lewis, in 1838. Plaintiffs (appellees) were some of the heirs of a William Lewis, of Fayette county, Tex., and in proof of their title showed a patent from the state to William Lewis for the land, dated in July, 1862, and also proved conveyance from certain of the heirs of said William Lewis, of Fayette county, to the defendants, which purported to convey the entire land, thus showing that both plaintiffs and defendants derived their title from a common source, to wit, William Lewis, of Fayette county, plaintiffs' ancestor. Defendants undertook to show that the William Lewis to whom the certificate issued was not said William Lewis, but that another William Lewis, and particularly William Lewis of Jasper county, Tex., was the grantee of the warrant, and introduced testimony which they claim was sufficient to require the issue of identity of William Lewis of Fayette county as the grantee to be submitted to the jury. The court instructed the jury to find for plaintiffs for an undivided half of the land.

The evidence showed that plaintiffs had a superior title from the common source for one-half of the land. The burden was accordingly upon defendants to show that the common source was without title, the presumption being that the title to the land had vested in the common source. Rice v. Ry., 87 Tex. 93, 26 S. W. 1047, 47 Am. St. Rep. 72; Foster v. Johnson, 89 Tex. 647, 36 S. W 67. Under these decisions and others, proof merely that some third person once had the title does not suffice to rebut said presumption, but the presumption remains that such title had passed into the common source. Therefore it would seem at first blush that, if the issue of identity had been submitted to the jury, and they had found that William Lewis, of Jasper county, and not William Lewis, of Fayette, was the real grantee, nothing would have been thereby established except that a third party formerly had the title.

But plaintiffs proved not only that their ancestor was the common source of title to this land, but introduced the patent from the state to William Lewis as showing their title, which could not have been except upon the theory that their ancestor was the patentee. This was the attitude which plaintiffs assumed on the trial, and it amounted to an assertion that their ancestor's title consisted of this patent, and, in our opinion, this relieved defendants from the necessity of disproving or negativing that the title came to him in any other manner. Mere proof that title was formerly in some third person is not enough, because it is presumed that it in some manner passed to the common source; still all that is required of a defendant is to remove this presumption of fact, which is done when plaintiff undertakes to exhibit the common source's title, and it appears that his title is not consistent with the theory that he acquired title from said third person. Here it was made to appear by plaintiffs' own showing that their ancestor's claim consisted of his being the patentee of the land. Hence proof that he was not the patentee was proof that he never owned the land.

We think further that what is stated in Ferguson v. Ricketts, 93 Tex. 568, 57 S. W. 19, applies. It appeared that the title, if any, which the common source had, was direct from the state, and was therefore independent of any title in some other William Lewis. There was evidence...