Fenley v. Ogletree

• Decision Date: 10 March 1955
• Docket Number: No. 4949,4949
• Citation: 277 S.W.2d 135
• Parties: W. D. FENLEY et al., Appellants, v. Ben OGLETREE et al., Appellees.
• Court: Texas Court of Appeals

Page 135

277 S.W.2d 135

W. D. FENLEY et al., Appellants, v. Ben OGLETREE et al., Appellees.

No. 4949.

Court of Civil Appeals of Texas, Beaumont.

March 10, 1955.

Rehearing Denied March 30, 1955.

James E. Faulkner, Cold Springs, Kirby Kelley, Shephered, for appellant.

V. A. Collins, Ross Hightower, Livingston, J. A. Barnes, Beaumont, for appellee.

ANDERSON, Justice.

This action, in form of trespass to try title and for damages, was brought by the plaintiffs against W. D. Fenley, James E. Faulkner, A. P. Willis, Joe Denham, and eleven other defendants to recover 319 acres of land in San Jacinto County, a part of the Uriah Gibson Survey, and to recover the value of timber the defendants were alleged to have cut and removed from said land and converted to their own use and benefit.

The defendants, with the exception of A. P. Willis, answered by general denials and pleas of not guilty. Defendant Willis, in addition to entering a general denial, pleaded that he was an innocent purchaser for value of all logs that came into his possession from the land in controversy. The co-defendants of W. D. Fenley and James E. Faulkner also pleaded for recovery over against the sald Fenley and Faulkner for all sums the plaintiffs might recover against the cross-actors; this upon the theory that Fenley and Faulkner, representing themselves to be the owners thereof, had sold to cross-actors the timber which gave rise to plaintiffs' suit against the latter.

A joint motion for an instructed verdict was made by all of the defendants at the close of the evidence and was overruled. The plaintiff then moved for dismissal of their suit against all of the defendants except W. D. Fenley, James E. Faulkner, and A. P. Willis. This latter motion was granted, and all of the defendants except the three just named were dismissed from the action, at the cost of the plaintiffs. The case was then submitted to a jury on special issues which pertained only to the quantity and the value of timber cut and removed by the defendants from the land in controversy.

In response to the special issues submitted to it, the jury found that, under contracts made by the defendants Fenley and Faulkner, timber from the land in controversy to the extent of 75,000 board feet, of the value of $35 per thousand feet, was delivered to the defendant Willis, and pulpwood to the extent of 417 units, of the value of $3 per unit, was delivered to defendant Joe Denham.

Judgment was rendered that plaintiffs recover of the defendants, Fenley, Faulkner, and Willis the land in controversy together with the sum of $2,625 as the value of the timber received by Willis, and that they recover of the defendants Fenley and Faulkner the additional sum of $1,250 as the value of the 417 units of pulpwood delivered to the defendant Joe Denham. In a separate instrument from the one embodying the judgment or the portion thereof just mentioned, an unconditional judgment was ostensibly rendered in favor of the defendant Joe Denham against his co-defendants W. D. Fenley and James E. Faulkner, and appropriate provision for execution to issue thereon was made; it was decreed that on his cross-action, and as the amount he had paid each of them for the 417.1 units of pulpwood delivered to him, the said Denham recover of Fenley the sum of $625.65, and of Faulker a like sum, together with interest thereon at the rate of six percent per annum from December 31, 1951. Both judgments or parts of the judgment show on their faces to have been rendered and signed by the presiding judge on July 7, 1953. However, the instrument first referred to shows to have been filed with the clerk on July 8, 1953, and the other shows to have been filed July 11, 1953. From the judgment or judgments so rendered, the defendants Fenley, Faulkner, and Willis have perfected a joint appeal.

Neither of the appellants filed a motion for a new trial. As a consequence, we think that, of the twenty-four points of error they have brought forward, only those which complain of the refusal of the trial court to render judgment in their favor notwithstanding the verdict of the jury are properly entitled to consideration. Rule 324, Texas Rules of Civil Procedure, as it existed prior to January 1, 1955; Traders & General Ins. Co. v. Scott, Tex.Civ.App., 189 S.W.2d 633; Miller v. Long-Bell Lumber Co., Tex.Civ.App., 217 S.W.2d 867, affirmed 148 Tex. 160, 222 S.W.2d 244. However, we feel that, with the exceptions to be noted, what we shall say during the course of the opinion, together with the disposition that is to be made of the case, will have the effect of answering and overruling the various points and the contentions made under them, or else will render harmless the matters assigned as error. We feel, also, that the discussion will make sufficiently clear the numerous questions raised, and we shall therefore not undertake in every instance to state appellants' contentions explicitly.

The plaintiffs undertook to establish a regular chain of title from the Sovereign to themselves, and may be taken to have done so unless they failed because of one or more of the specific matters to be mentioned. For our purposes, it is sufficient to say that they claim through Thomas H. Webb, James H. Webb, Joseph Adams, the heirs of Joseph Adams, and G. R. Ogletree, among others.

The appellants contend that there was no showing that James H. Webb ever acquired the title of Thomas H. Webb; but that if he did, title stemming from him, superior to that asserted by plaintiffs, was shown to be outstanding in one J. B. Kerby. They also contend that if title ever vested in Joseph Adams, they themselves are joint tenants with the plaintiffs by virtue of having purchased from an heir of the said Adams. Lastly, they contend that a deed from G. R. Ogletree to plaintiffs was inadmissible in evidence.

As establishing passage of title from Thomas H. Webb to James H. Webb, the plaintiffs relied on a partition of the estate of the former after his death, which partition, it is claimed, was made by the Probate Court of Madison County, Texas. To prove such partition, they introduced in evidence from the deed records of San Jacinto County the record of what had been certified December 2, 1879, by the clerk of the county court of Madison County as a true copy of a part of the Probate minutes of that court in the matter of the estate of Thos. Webb, deceased. The certified copy weas filed for record in the office of the county clerk of San Jacinto County on March 5, 1891, and was thereupon duly recorded in the deed records of that county. Included with and as part of the records certified from Madison County, recorded in San Jacinto County, and introduced in evidence from the deed records of the latter county, was the following order or decree of the district court of Madison County:

'On the 17th day of August A.D. 1875. This day came on to be heard the motion of Jas. H. Webb, administrator of the estate of Thomas Webb, deceased, to substitute the original record and papers of the estate of said decedent, and it appearing to the satisfaction of the court that said record and papers had been in existence in the Probate Court of said Madison County and that the same had been destroyed by fire: It is therefore ordered and adjudged & decreed by the court that the motion of said administrator be granted and that the paers herewith filed and sworn to be recorded as substantial copies of the original record of said administration and that same be recorded as such.

'James R. Burnett, Judge

'District Court for 30th

'Judicial Distirct.'

The substituted probate records were not void and lacking in probative value as evidence becaue of a want of jurisdiction or lack of authority in the district court of Madison County to order their substitution. At the time the order of the district court was entered, there was in effect an Act of the Fourteenth Legislature which authorized the court to act in the premises. Vernon's Ann.Civ.St. arts. 6582 et seq. It became effective April 14, 1874, and was entitled, 'An Act to provide for the supplying of lost Records in the several counties in this State.' Acts 14th Leg., p. 100; Gammel's Laws of Texas, Vol. 8, p. 100(102); Craddock v. Scarborough, 54 Tex. 346. Section 1 of the Act provided, among other things, 'That * * * any and every judgment of a court of record in this State, and which record and minutes of court containing such judgment have been lost, destroyed or carried away, may be supplied by parol proof of the contents thereof, which proof shall be taken in the manner hereinafter provided.' Section 2 provided: 'Any person having any interest in such deed, instrument in writing or judgment, the record or entry of which has been lost, destroyed or carried away, may in addition to any mode now provided by law for establishing the existence of such record, and the contents thereof, apply to the district judge of the district in which such county, the records of which have been lost, destroyed or carried away, is situated, for a citation to the grantor in such deed, or to the party or parties interested in such instrument of writing, or to the party or parties who were interested adversely to the applicant at the time of the rendition of any such judgment, or who may now be interested, or the heirs and legal representatives of such parties, to appear at a term of the district court * * *; and on hearing said application, if the court shall be satisfied of the existence of such deed, instrument in writing, record or judgment and of the loss, destruction or carrying away of the same, as alleged by the applicant, and the contents thereof, an order shall be entered on the minutes of the district court to that effect, which order shall contain a description, of the lost deed, instrument in writing, judgment or record, and the contents thereof; and a certified copy of such order may be recorded in the records of the county, and shall...