Glover v. Thomas

• Decision Date: 20 December 1889
• Citation: 12 S.W. 684
• Parties: GLOVER <I>v.</I> THOMAS <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 684

GLOVERv.

THOMAS et al.

Supreme Court of Texas.

December 20, 1889.

Appeal from district court, Clay county; P. M. STINE, Judge.

J. E. Bomar and Meade & Bomar, for appellant. W. G. Eustis, for appellees.

GAINES, J.

This was an action of trespass to try title, brought by appellees against the appellant and the Carroll Land & Cattle Company, to recover a tract of land consisting of 640 acres. The defendant the Carroll Land & Cattle Company disclaimed as to the west half of the tract, and as to the other half pleaded not guilty, and the statute of limitations. Upon the trial the court gave judgment in its favor for the east half, and the plaintiffs have not appealed. The appellant disclaimed as to the east half, and as to the west half pleaded not guilty. He here appeals from a judgment against him for the latter half.

During the trial, in order to show a common source of title between the plaintiffs and defendants, the plaintiffs offered in evidence a certified copy of a deed purporting to have been made by J. L. Thompkins and C. L. McMurphy, by M. C. McLemore, their attorney in fact, and to convey to R. D. Glover, T. J. Jennings, and W. M. Thomas the land in controversy. The defendants objected to the evidence offered on, substantially, two grounds: (1) Because the original deed was the best evidence, and no reason was shown why it was not produced; and (2) because the authority of the person by whom it was executed to make the conveyance was not shown. The certified copy of the deed was admitted, and defendant excepted, and now assigns the ruling as error. In regard to the first ground, it is sufficient to say that if there was error in admitting the certified copy the error was cured by the act of appellant himself. When he came to adduce his evidence, he introduced the original deed. Having the deed in his own possession, if plaintiffs had given him notice to produce it, and he had failed to do so, the copy would have been admissible. He was evidently not prejudiced by the ruling. Ought the deed to have been excluded upon the second ground of objection? The rule as to deraigning titles from a common source in suits for the recovery of land is founded upon the principle that a defendant in such action, by claiming under a certain title, affirms its validity. If, therefore, the plaintiff show a superior right under that title, he ought, prima facie, at least, to prevail in the suit. It need not be a good title. It is sufficient that it is appearance of title, and that both parties claim under it.

It is also claimed that the court erred in excluding the testimony of appellant. The deed above mentioned, if it conveyed any title at all, placed the apparent legal title to the land in suit in R. D. Glover, T. J. Jennings, and W. M. Thomas. The evidence showed that they were all dead. The defendant A. C. Glover was a son and heir of R. D. Glover. The plaintiff Jackson sued as executor of the will of Jennings, and plaintiff Mrs. Thomas as sole heir of her husband, W. M. Thomas. Counsel for appellant, Glover, offered to prove by his own...