Harris v. Stark

• Decision Date: 20 May 1908
• Citation: 110 S.W. 737
• Parties: HARRIS v. STARK.
• Court: Texas Supreme Court

110 S.W. 737

HARRIS v. STARK.

Supreme Court of Texas.

May 20, 1908.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Sidon Harris against Ennis Stark, in which others were impleaded by defendant. From a judgment of the Court of Civil Appeals reversing a judgment of the trial court and remanding the case (106 S. W. 887), plaintiff brings error. Reversed, and judgment of trial court affirmed.

Sidon Harris, in pro. per. J. E. Brown, for defendant in error.

BROWN, J.

Sidon Harris sued Ennis Stark in the district court of Menard county to recover 640 acres of land, consisting of two surveys of 320 acres each, which was granted by the state of Texas to F. Selks. Selks impleaded his warrantors, Anna Mohr, Charles Mohr, Agnes Grandpre, Frank L. Nuse, and Henry L. Nuse. The case was tried before the judge, and resulted in a judgment for the plaintiff in error for the land. Appeal was taken, bills of exception prepared, signed, and filed, and a statement of facts made and approved by the judge who tried the case. After the transcript was filed in the Court of Civil Appeals Harris filed a motion in the district court to strike out the statement of facts and bills of exception because they had been changed in material respects after they were signed and approved by the judge. Upon a hearing the district judge sustained the motion and struck out the bills of exception and statement of facts. The defendants did not resist the motion in the trial court, but objected in the Court of Civil Appeals that the district judge had no authority to strike out the statement of facts and bills of exception. The Court of Civil Appeals sustained the action of the district judge in striking out the statement of facts, but held that the bills of exception could be considered by eliminating the portions which had been improperly inserted therein, and considered the bill in disposing of the case. The land was patented to Fisher in 1856, and he conveyed it to George Butler in 1859. The deed was recorded in Bexar county July 20, 1869, and was recorded in Menard county in 1906. Menard county was created out of the territory of Bexar in 1858, and was organized in 1870. Stark by mesne conveyances has the title which Butler acquired by the conveyance from Fisher. Fisher died intestate in 1867, and Harris claimed the land under conveyances from Fisher's heirs, which were made before the deed from Fisher to Butler was recorded in Menard county in 1906. Stark offered in evidence the deed from Fisher to Butler, which was objected to by Harris for several reasons and excluded by the court, to which ruling defendant took a bill of exceptions, which was one of those stricken out by the district judge. The issue upon which the title of Harris depends is whether he was charged with notice by the record of the deed in Bexar county. The trial court held that the record in Bexar county was not notice, and that Harris was an innocent purchaser for value without notice. The Court of Civil Appeals held that the record of the deed in Bexar county before Menard county was organized constituted notice to the purchaser who acquired title after the record of the deed in Bexar county. The judgment of the district court was reversed, and the cause remanded for trial, and Harris applied to this court for a writ of error upon the ground that the decision of the Court of Civil Appeals practically settles the case.

Jurisdiction of this class of cases is conferred upon this court by the following article of the Revised Statutes of 1895: "Art. 941. All causes shall be carried up to the Supreme Court by writs of error upon final judgment and not on judgments reversing and remanding causes except in the following cases, to wit: * * * (8) When the judgment of the Court of Civil Appeals reversing a judgment practically settles the case,...