Gramm v. Coffield, 8626.
| Decision Date | 04 May 1938 |
| Docket Number | No. 8626.,8626. |
| Citation | 116 S.W.2d 1089 |
| Parties | GRAMM et al. v. COFFIELD et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Milam County; Terry Dickens, Judge.
Suit by Mrs. Nell K. Gramm and others against H. H. Coffield and others, in trespass to try title to recover land, wherein defendants Dave and Nettie Scott filed cross-action. From judgments on instructed verdicts for all defendants, plaintiffs appeal.
Reversed and remanded.
C. H. Chernosky and A. B. Gerland, both of Houston, and Lockhart, Hughes & Lockhart, of Galveston, for appellants.
J. W. Garner and E. A. Camp, both of Rockdale, and Wallace & Wallace, of Cameron, for appellees.
As concerns this appeal, appellants, Mrs. Nell K. Gramm and her husband, John A. Gramm, and Mrs. Genevieve K. Mass, a feme sole, sued appellees, Dave and Nettie Scott, H. H. Coffield, and others, in trespass to try title to recover 206 acres of land in Milam County out of the Eliza Sante Original Grant of one league and one labor of land in Milam and Burleson Counties, describing the 206 acres by metes and bounds. A trial to a jury resulted in instructed verdicts and judgments for all appellees, apparently: (1) because appellants failed to show title in themselves from the sovereignty of the soil, or from common source with appellees; and (2) because appellants failed to sufficiently identify the land claimed by them and asserted to be in the possession of appellees.
The trial court also instructed a verdict and accordingly rendered judgment for appellees Dave and Nettie Scott upon their cross-action for title to the west one-half, or 103 acres, of the 206-acre tract under the 5-year statute of limitation.
We have reached the conclusion that the trial court erred in so instructing verdicts and rendering judgments for appellees.
Appellants claimed title from the sovereignty of the soil under the following instruments of conveyance:
1. A patent from the State to Eliza Sante (sometimes spelled Santee or Santy), dated October 15, 1847, conveying to her one league and one labor of land in Milam and Burleson Counties, being Patent No. 276, Vol. 6, and Abstract 317, recorded in the Deed Records of Burleson County, January 17, 1872.
2. A deed from John A. Santy, known also as John A. Flippen, to J. Lawrence Dickson, dated and duly acknowledged December 28, 1871, and recorded in the Deed Records of Burleson County, January 27, 1872, the material portions of which read as follows:
3. Sundry deeds and conveyances of parties claiming under said deed from John A. Santy, or John A. Flippen, to J. Lawrence Dickson, each such conveyance referring to said Santy or Flippen deed and making the record of it a part of the conveyance; and each such conveyance being recorded in Burleson County shortly after its execution, beginning in 1879, and down to the conveyance to appellants in 1925.
If the above mentioned deeds and conveyances were admissible in evidence, then appellants showed a regular chain of title in themselves emanating from the sovereignty of the soil; and the question here presented depends in the first instance upon the admissibility of the recital in the deed of John A. Santy or John A. Flippen that he was "the only heir by will and by blood of Eliza Sante, deceased." When this deed was offered in evidence, appellees objected to the recital; and the trial court excluded it upon the ground that appellees were not parties nor privies to the deed, and since it was not recorded in Milam County, where the 206-acre tract was situated, it was not competent nor sufficient proof either under the common law or statutes of this state of the recited fact that grantor was the only devisee and heir of Eliza Sante. Several of the deeds of parties claiming under this Sante or Flippen deed contained the same recital of heirship, and were excluded on the same grounds; and other conveyances, all referring to said recorded Santy or Flippen deed and making it a part of each conveyance, were excluded on the ground that they had not been recorded in Milam County, where the 206 acres of land are situated, and were therefore not notice to appellees of appellants' claim of title.
Other than the recital in the deed of John A. Sante (also known as John A. Flippen), that he was "the only heir * * * by blood of Eliza Sante, deceased," and some circumstantial evidence, there was no direct proof of such sole heirship. The undisputed proof showed that appellees claimed under a different chain of title, the instruments of conveyance upon which they relied being recorded in Milam County, where the 206 acres of land are situated. The evidence also showed that appellants were not in possession claiming under their ancient instruments of title; but they alleged that appellees were in possession. In this situation the trial court excluded the recital of heirship and pedigree upon authority of the case of Watkins v. Smith, 91 Tex. 589, 45 S.W. 560, wherein the court held (page 561) that "recitals in a deed are evidence against the parties to such deed and their privies, but not against strangers"; and upon the further grounds that since the appellants were not in possession, and since the deed had never been recorded in Milam County, where the 206 acres were situated, it was not competent evidence either under the common law or statutes, as an ancient or other deed to prove prima facie the fact of sole heirship of grantor. Under the rule of the case cited and the more recent decisions following it the trial court seems to have correctly excluded the recital of heirship, unless it were mistaken in holding that the deed had not been properly registered under the registration and evidence statutes so as to become prima facie evidence of the fact of heirship recited in the deed. We have reached the conclusion that the trial court did err in so holding. The land conveyed by said deed and all mesne conveyances thereunder to appellants was at least...
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