Garner v. Lasker

• Decision Date: 16 October 1888
• Citation: 9 S.W. 332
• Parties: GARNER <I>et al.</I> <I>v.</I> LASKER <I>et al.</I>
• Court: Texas Supreme Court

9 S.W. 332

GARNER et al.

v.LASKER et al.

Supreme Court of Texas.

October 16, 1888.

Commissioners' decision. Appeal from district court, Burnett county; W. A. BLACKBURN, Judge.

Trespass to try title, by M. W. Garner and others against M. Lasker and others. Judgment for defendants, and plaintiffs appeal. Rev. St. Tex. art. 4802, (of the title relating to "trespass to try title,") provides: "It shall not be necessary for the plaintiff to deraign title beyond a common source, and proof of a common source may be made by the plaintiff by certified copies of the deed showing a chain of title to the defendant emanating from and under such common source. * * *"

J. G. Cook, for appellants.Ward & Hammond, for appellees.

HOBBY, J.

This is an action of trespass to try title to 1,280 acres of land, brought by the appellants, plaintiffs in the lower court, against the appellees, on the 5th day of April, 1886.The cause was tried by the court without the intervention of a jury, and resulted in a judgment for the appellees, defendants below, from which judgment this appeal is prosecuted.The controlling questions in the case, on the decision of which its disposition depends, are presented by the first, second, and third assignments of error.The first assignment is that "the court erred in sustaining the objections of the defendants to the deed offered in evidence by plaintiffs, executed by N. J. Miller, sheriff and collector of Burnett county, to A. R. Johnson, for the land in controversy, dated June 26, 1878, recorded May 29, 1879; and erred in holding that said deed was insufficient as a muniment of defendants' chain of title to show that defendants and plaintiffs deraigned their respective titles from the same common source."It appears from the bill of exceptions contained in the record that, upon the trial of the cause, plaintiffs, for the purpose of establishing the fact that Madison Porter was the common source from whom both defendants and plaintiffs claimed the land in controversy, and for the further purpose of charging defendants with constructive notice of said Porter's title, offered in evidence a tax deed from N. J. Miller, sheriff and collector of Burnett county, to A. R. Johnson, dated June 26, 1878, recorded May 29, 1879, for the land involved in this suit.This deed recited that the land was sold as the property of said Porter for the non-payment of taxes, and referred therein to the patent from the state to Owens, the conveyance by Owens to Robert O. Lusk, and by Lusk to Porter, on the 24th of September, 1853.It was offered in evidence in connection with other deeds, admitted, from said Johnson to defendants under whom they claimed.To the introduction of this deed in evidence for the purposes stated the defendants objected, "because it was void upon its face, and did not convey the land subject to Porter's right of redemption within two years," and "because it recited that at the time of the levy and sale of the land it was situated in Burnett county, Texas; the title thereto being fully vested in the said A. R. Johnson."These objections were sustained by the court, the deed excluded, plaintiffs excepted, and assign as error the exclusion of the deed when offered for the purposes stated.

It was the object of the act of September 2, 1871, (supplementary to the act to provide for trying titles to land,) now incorporated in article 4802 of the Revised Statutes, to prescribe how the fact that the defendant claimed from a common source with the plaintiff may be proved without giving evidence of title in the defendant.The rule that, when parties claim under a common source, it shall not be necessary to trace title beyond that from which they both claim, and that such proof may be made by showing a claim of title to defendant emanating from and under such common source, is as old as the action itself.Keys v. Mason,44 Tex. 142;Calder v. Ramsey,66 Tex. 219.One of the well-recognized modes in this action, by which plaintiff, upon whom the burden rests, may establish his title, is by proof that defendant and he claim the land under a common source of title, and that his is the better or superior title under such common source.And if plaintiff succeeds in this mode, it can only be by proof of a claim by defendant under the common source, which in law is no title, or a defective title.A void tax deed purporting to divest the common source of title, and which constitutes the basis of the defendant's claim, would be an effectual mode of establishing that defendant's claim emanated from such common source, without giving evidence of actual title in defendant.The fact that the deed or instrument constituting defendants' claim to the land may be defective or void in the sense that it does not operate to divest the title out of the common source, is one of the modes in this action by which the plaintiff may succeed, when this is followed up by proof of a superior title to plaintiff from the common source.This proof may not conclusively establish plaintiff's right as against the defendants in the action, but it overcomes the presumption of right arising from the latter's possession, and devolves upon him the burden of disproving the plaintiff's case, or of showing a superior title in himself, as for example, that he holds under a title from the sovereignty of the soil older than plaintiff's or title by limitation; or that, though he and plaintiff claim under a common source, he, or a third party, has a superior outstanding title to that which they claim from the common source.The defendant is not precluded from showing that he does not claim title from the common source.But the fact that defendant does not admit or allege that he claims under such source will not deprive plaintiffs of the right to make such proof under the law.Keys v. Mason,44 Tex. 142.On the trial the defendants offered no deeds to the land showing title in them, but evidently relied upon the supposed failure of plaintiffs to establish their title by a regular chain of title from the sovereignty of the soil, and their failure, by reason of the exclusion of the Miller conveyance, to show a common source, and a superior title therefrom, the deeds introduced by plaintiffs, in connection with the excluded tax deed from Miller, showed that the land had been sold as the property of Porter for the non-payment of taxes for the year 1873.This deed is dated in June, 1878, and conveys the land to Johnson.In May, 1879, Johnson conveys it to C. M. Lusk.Lusk, in August, 1879, reconveys 300 acres to Johnson, who, in 1882 conveys to the...