Harlowe v. Hudgins

• Decision Date: 22 March 1892
• Citation: 19 S.W. 364
• Parties: HARLOWE <I>et al.</I> v. HUDGINS <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 364

HARLOWE et al. v. HUDGINS et al.

Supreme Court of Texas.

March 22, 1892.

Commissioners' decision. Section B. Appeal from district court, Washington county; T. S. REESE, Special Judge.

Trespass to try title by Elizabeth J. Harlowe and others against H. Hudgins and others. The court dismissed the case. Plaintiffs appeal. Reversed.

Bassett, Seay & Muse, for appellants. Searcy & Garrett and M. M. Kinney, for appellees.

FISHER, J.

This is a suit of trespass to try title, brought by appellants against appellees, for certain lands described in the petition. Appellees pleaded not guilty, and the 5, 3, and 10 years' statutes of limitations. It is admitted that William B. Travis and Robert E. Hardy are the original grantees of the land, and that both plaintiffs and defendants, respectively, claim title under them, and that they are the common source. It is admitted that appellants are the children and heirs of Mrs. Elizabeth Graham, wife of John M. Graham; that the said Elizabeth and John M. Graham are both dead. Appellants, as title, introduced in evidence: (1) The record of a deed from R. E. Hardy to James Stephens, whereby Hardy conveyed all his interest in the lands. The deed dated October 23, 1838. (2) Deed executed by James Stephens to John M. Graham, dated October, 1841, and recorded August 7, 1844. The appellants offered to read in evidence from the records of Washington county the following instrument, to wit: "Assignment. I assine the within to Elizabeth Graham for value received of her the sum of fourteen hundred and sixty three dollars and thirty three cents, this April 11th, 1843. [Signed] J. M. GRAHAM. Test: JACOB BARNES. N. D. GRAHAM. Republic of Texas, county of Washington. Before me, John Gray, clerk of the county court in and for the county aforesaid, came John M. Graham, and acknowledged to me that he signed over the above deed as therein express. Given under my hand and seal of office this 7th day of August, 1844. [L. S.] [Signed.] JOHN GRAY, C. C. W. C." To which instrument the appellees objected—First, because said instrument was void for uncertainty; second, because there was nothing in said record to show to what deed the alleged assignment had reference; and, third, because the acknowledgment was not sufficient to admit said instrument to record. Which objections the court sustained, and excluded said instrument. Upon the refusal of the court to admit this instrument in evidence the appellants took a nonsuit, and judgment was thereupon entered, dismissing the case, with judgment for costs against appellants. It appears that the parties to the suit all agreed that copies of deeds found in the records of Washington county may be read in evidence without accounting for the originals, and without filing and giving notice thereof. The appellants presented a motion to set aside the nonsuit and judgment dismissing the case, and that it be reinstated on the docket. The court overruled the motion. The refusal of the court to admit this instrument in evidence, and the overruling of the motion to set aside the judgment dismissing the case, are the only questions determined in this opinion.

Appellants, in their motion to set aside the nonsuit and reinstate the case, say that they were surprised at the ruling of the court in excluding said instrument, and that they will be able to show on another trial, by one Napoleon Graham, a subscribing witness to said instrument, that it was indorsed on the deed from James Stephens to John M. Graham, and this it referred to the land mentioned and described in said deed; that the witness Graham resides in the state of Washington; and that his affidavit or evidence cannot be procured at the present term, but will be secured at the next term. It appears from the statements of the bill of exceptions made and approved, to the action of the court in excluding this instrument, that it is recorded on page 318 of book E, being the same page on which the record of the deed from Stephens to Graham is found, and that it follows immediately after said deed, without any space or line intervening; that both instruments purport to be acknowledged before the same officer, and on the same day; that the record of both is apparently in the same handwriting, and done with the same pen and ink; that there is but a single file mark on the record of said instruments. These facts are very persuasive in producing a reasonable belief that the excluded instrument was in fact indorsed and written on the deed from Stephens to Graham, and that it referred to the deed, and the land therein described. At least the circumstances were of...