Gainer v. Cotton
| Decision Date | 01 January 1878 |
| Citation | 49 Tex. 101 |
| Parties | WILLIAM GAINER ET AL. v. WILLIAM COTTON ET AL. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Freestone. Tried below before Hon. J. B. Rector.
This was an action of trespass to try title in the ordinary form, brought March, 1873, in the District Court of Freestone county, by William T. Gainer and others, who are appellants, against William Collins and others, who are appellees, for the league of land upon which the town of Fairfield is situated, originally granted to Redin Gainer.
The plaintiffs claimed as children and heirs of the grantee, Redin Gainer, and his wife, Amelia Gainer.
The grant was made July 9, 1835, and it was community property. The wife, Amelia Gainer, died December 18, 1842, in Nacogdoches county, leaving no community debts.
Under appropriate pleadings, the defendants set up title to the land sued for, under three instruments relied on as conveyances, made by Redin Gainer before the death of his wife.
1. A deed for the east half of the grant, of date July 26, 1836, and made to Sparks and Thorn. The nature of this conveyance, and the testimony adduced, are carefully given in the opinion.
2. A title bond bearing date November 27, 1837, signed by Redin Gainer and Permelia Gainer, she making her mark, and to David H. Love for one-half of his, the said Gainer's, half league of land in Burnett's colony, &c.
To the admission of this, proper objection was made; and touching it, on August 11, 1874, defendant William Gainer made affidavit that it “had been carefully and critically examined by him, and that he believes the said title bond to be forged; * * * and that he believes the pretended certificate of authentication attached to said pretended title bond * * * is also a forged instrument of writing.”
The defendants then proved the handwriting of the subscribing witnesses thereto, and that they were both dead, and that the certificate of H. Owen on the same (certificate of authentication) was in the handwriting of said Owen, who lived in Robertson county, Texas.
Defendants proved, further, by one John Karner, that he had had possession of the title bond since 1847; that witness received it from D. H. Love, the obligee; that Love took possession of the northwest quarter of the Gainer league in 1851. Witness has had possession of the title bond since 1847. In 1848, witness, by mistake, made a deed to Love for part of the east half. At that time, witness received the title bond from Love.
Upon this proof, the judge on the trial admitted the bond in evidence, as follows:
“Know all men by these presents, that I, Redin Gainer, of the Republic of Texas and county of San Augustine, am held and firmly bound unto David H. Love, of the republic and county aforesaid, in the penal sum of twelve hundred dollars, good and lawful money of said republic, the payment of which I bind myself, my heirs, executors, and administrators, &c., firmly by these presents. Dated the 27th day of November, 1837, under my hand and seal.
The condition of this obligation is such, that whereas the said David H. Love has this day sold and transferred unto the above-bound Gainer his lot and shop in the town of San Augustine, said lot known on the plat of said town as number 216, as will more fully appear by having reference to said transfer, the same bearing even date with this obligation: Now, if the said Gainer shall make, or cause to be made, unto the said Love, or his assigns, a good and sufficient title in feesimple to the one-half of his, the said Gainer's, half league of land, situated in Burnett's colony, on the west side of the Trinity river, as will more fully appear by reference to the title issued to said Gainer by George A. Nixon, Commissioner, said half league to be divided into four equal parts, and the shares to be drawn for, the said Gainer and Love, mutually: Now, if the said Gainer shall and will truly make, or cause to be made, unto the said Love, or his assigns, a good and sufficient deed or deeds to the shares of said land as soon as thereunto requested by the said Love, then and in that case this obligation shall be void; otherwise to remain in full force, in law and equity. And further, I, the said Redin Gainer, do by these presents bar all law and parts of law in my favor to the full recovery of this my obligation, if I fail to do and perform all and singular the covenants therein expressed towards perfecting a title in fee-simple to the said Love, to be signed by myself and my wife; and in case of performing the same, this obligation to be void, and of no effect. Given under my hand and seal this 27th day of November, A. D. 1837.
Personally appeared before me, Harrison Owen, county clerk and recorder in and for said county, William M. Love, who, after being duly sworn, saith that he saw Redin Gainer and Permelia, his wife, sign, seal, and deliver the foregoing, and acknowledge the same to be their own free act for the purposes therein contained.
Given under my hand and private seal, having no seal of office, this 20th day of December, 1843.
(This had been recorded in Robertson county, and recently in Freestone county.)
The objections urged against the title bond, and which were overruled, were--
1. It is a stale demand, and barred by the statute of limitations, and the evidence shows that no possession was taken under it; that possession was not taken until 1851 by D. H. Love, and that that possession was not under the title bond, but under the deed from John Karner to David H. Love, dated May 31, 1851.
2. Because the title bond was not free from suspicion, Permelia Gainer purporting to sign it by her mark, when the testimony shows that she could write her own signature, and that the testimony shows that her name was Amelia, and not Permelia, and that she was never known or called by any other name than Amelia or Milly.
3. Because proof of the handwriting of the two subscribing witnesses is not sufficient to prove up the instrument.
4. Because the affidavit of one of the defendants, above given, attacking the genuineness of the signatures of the makers, and of the certificate of authentication,… “requires other proof of its execution than the proof of the handwriting of the attesting witnesses.”
The court then, over objections, admitted in evidence a certified copy of the deed from D. H. Love to Redin Gainer for the lot number 216, in San Augustine, as stated in the title bond aforesaid of same date.
To the copy, it was objected, because the notice to produce it had not been served upon the attorneys of plaintiff until August 10, 1874, (the trial was had August 22, 1874,) after the term of the court had commenced, and after said attorneys, who reside in Austin, had reached the place of trial, and after William T. Gainer, who resides in Jackson, had left the place of trial; and for other reasons not discussed in the opinion.
Defendants also read in evidence a deed purporting to be made by John Karner, as agent for Redin Gainer, for the northwest corner of the Gainer league of land, of date 31st of May, 1851, over objections, (1) that Karner had no authority; (2) because no possession had been taken of said northwest quarter anterior to the deed. Prior to this, Karner had testified that he had deeded by mistake the northeast corner, and had taken up the title bond, &c.
The third deed from Redin Gainer, relied on by defendants, and read in evidence, was executed April 17, 1840, to Matthew Cartwright, and purported to convey “one-half of the east half a league of land lying west of the Trinity, and being known as a league granted to me, said Redin Gainer, as a colonist and citizen of the State of Coahuila and Texas, by Commissioner George A. Nixon, for the colony of David G. Burnett, said half league of to be divided according to value and quality.”
The court submitted the question of the locality of the land as purchased by Cartwright, and a synopsis of the testimony is given in the opinion; it being insisted by defendants that the intent was to convey an interest in the west half instead of the east. The statement of facts and bills of exceptions to evidence admitted, cover, in the transcript, 300 pages. The opinion can be understood from the abstract given here.
Archer & Wildy and D. E. Thomas, for appellants.--There are many authorities in our own reports going to show that if the title bond offered in evidence in this cause by the defense, and admitted over the objections of plaintiffs, was sued upon for specific performance by the defendants, the suit could not be maintained, as the bond would be considered a stale demand--more than ten years having elapsed from the time of defendants' cause of action accrued upon the bond. (De Cordova v. Smith, 9 Tex., 144;DeWitt v. Miller, 9 Tex., 246, 247;Smith v. Hampton, 13 Tex., 463;Glasscock v. Nelson, 26 Tex., 152.)
Under article 4621 of Paschal's Digest, D. H. Love was barred from his right to enter upon the land in controversy, as the entry was not made within ten years from the date of the bond, or within ten years from his right to enter.
The ninth instruction was wrong, for the reason that it assumed that there was evidence tending to show that Gainer had knowledge of the partition made by Karner, and that he afterwards acquiesced in it, when all the evidence upon the subject shows that Gainer did not know anything about the partition of the land having been made, and that he did not ratify it. There is no principle better settled by the...
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