Hatchett v. Conner

• Decision Date: 30 April 1867
• Citation: 30 Tex. 104
• Parties: HUBBARD G. HATCHETT v. JOHN CONNER ET UX.
• Court: Texas Supreme Court

30 Tex. 104

HUBBARD G. HATCHETT

v.JOHN CONNER ET UX.

Supreme Court of Texas.

April, 1867.

By the 9th section of the common-law act of 1840 it is declared, that the husband may sue either alone or jointly with his wife for the recovery of any of the effects of the wife. Pas. Dig. art. 4636, note 1043. The wife seems to be an unnecessary party. 7 Tex. 184;15 Tex. 471.

Where the husband had sued, as next friend of the wife, to recover land which belonged to her, it was not error to allow an amendment by which the wife was made a formal party, since it was optional whether she was joined or not, and their joinder by amendment was immaterial.

The right to amend the pleadings, when not forbidden by statute, is within the sound discretion of the court, and its exercise will not in general be revised. Pas. Dig. art. 54, note 243; 5 Tex. 133.

A translation of a Spanish title is only admissible in evidence upon the hypothesis that the original, if produced, would be legal evidence. Pas. Dig. art. 70, note 250; 3 Tex. 393;5 Tex. 464.

If the testimonio or second original be relied on, its execution must be proved. Pas. Dig. art. 70, note 250; 7 Tex. 348;8 Tex. 210;9 Tex. 598;25 Tex. 258;26 Tex. 212.

The fact that the testimonio had been deposited in the land office, for the purpose of being recorded, did not authorize the commissioner to certify a copy. He could only certify copies of all records properly in his office. Pas. Dig. art. 3715, note 839.

Where the court, in the general charge, had already substantially given the instruction asked, it was not error to refuse its repetition. Pas. Dig. art. 1464, note 562.

Where the husband joins the wife in a suit to recover her separate property, if the proof be that the property belongs to the husband, they cannot recover. Pas. Dig. art. 4636, note 1043; 12 Tex. 405;13 Tex. 628;post, 164.

Where the conveyance is to the wife, and it is proved that the husband knew it, and acquiesced in it, the title inured to her benefit as completely as if he had assented by the most solemn deed. Pas. Dig. art. 4642, note 1049; 12 Tex. 411;24 Tex. 307.

A void title cannot be a foundation for a claim for the value of improvements made in good faith. Pas. Dig. art. 5300, note 1147; 13 Tex. 298;15 Tex. 454;contra,23 Tex. 36;24 Tex. 366.

A party who asks a new trial, on the ground of newly-discovered evidence, must satisfy the court that the evidence has come to his knowledge since the trial; that he had used due diligence; that it is not cumulative; and that it would probably produce a different result. Pas. Dig. art. 1470, note 566; 21 Tex. 180.

APPEAL from Cherokee. The case was tried before Hon. JOHN D. DOCHARD, a special judge chosen by the parties, in place of Hon. REUBEN A. REEVES, one of the district judges.

The suit was an action of trespass to try title, and to recover a part of a location and survey, under the headright certificate of Lawrence W. Simpson. The original petition described the plaintiff, “Mary Conner, who sues by her husband and next friend, John Conner,” and the petition averred the facts to show that the suit was for the land as her separate property. By subsequent amendments, the wife was joined with the husband, and it was averred that the land was the separate property of the wife. An exception to the original petition was sustained, and the exceptions to the amended petition, and the objection to the permission to file it, were overruled, and the defendant excepted.

At the trial, the plaintiffs proved the property to be in the wife by location and survey, and the gift of the certificate to the wife with the assent of the husband, thus tracing the legal and equitable title to the wife, by deed to her, and consent and acquiescence by the husband to have the certificate so conveyed.

The defendant relied upon some written evidence of title to himself, and attempted to prove an outstanding title in Jose Maria Musquez, with whose survey the location conflicted. The evidence offered was a translated copy of the testimonio, certified to be a correct translation by Stephen Crosby, commissioner of the general land office. It was unsupported by evidence that the first original was an archive in the general land office. The plaintiff below objected to this evidence, and the objection was sustained. The main point in the case was as to the correctness of this ruling, although much of the contest took place upon the efforts of the defendant to establish that, if the plaintiffs had title, the land was community property, and not the separate property of the wife; and therefore the suit was wrongly brought. These points were raised upon the general charge of the court, and sundry counter instructions offered and refused.

The position of the judge and the finding of the jury were upon the hypothesis that Lawrence W. Simpson had sold his land certificate to Uriah Conner, and that Conner had directed the legal title to be made to his mother, in satisfaction of Simpson's title-bond, which Uriah held. And that, either before or after the death of Uriah, this was done, with the consent of the husband of the mother. The theory of the defense was, that Uriah Simpson had died intestate, and that descent was cast upon John and Mary Conner, his father and mother; and, therefore, the deed of Simpson to Mary inured to the benefit of the community, and was not a gift to the mother by the son. The defendant also relied upon the Musquez grant, and a title-bond in favor of John Conner for three hundred and twenty acres of that grant, and the fact that in the original petition the land was described as being part of the Musquez survey. But there was no proof that the land described in the title-bond conflicted with the Simpson location, or that the defendants claimed under John Conner's purchase under the Musquez grant. So that this defense must have rested upon the assumption that the husband was the owner, and not the wife.

As to the improvements, the defendant having failed to prove a paper title, the question of good faith was hardly in the case. But there was proof of valuable improvements, and of the value of the rent to exceed the value of the improvements. The jury, however, only found a verdict for the land, without noticing the issues about improvements and rents. Upon this verdict there was judgment, from which the defendant appealed.

From the bill of exceptions it appears that the defendant offered in evidence the Musquez grant, and the evidence that the plaintiff, John Conner, had purchased under this grant; also, that the defendant had bought the land under the Musquez grant, and paid for it; but no paper evidence of this purchase was offered, possibly because the translated copy of the Musquez grant had been excluded. In the motion and affidavits for a new trial, however, the defendant swore that he expected to use the original testimonio as an outstanding title. The facts in this motion were, that Allen, who held this grant, had refused to allow the defendant to use it at the trial, but promised its use upon the next trial, and that it covered the land in controversy; that the testimonio had been on file in the general land office, from which it had been withdrawn; and that the defendant could use it on the next trial. The legal effect of this five-league grant was not considered.

The errors assigned went to these various rulings. They are sufficiently stated by the learned judge who delivered the opinion.

M. Priest, for appellant. The right to amend is not extended to a case brought by an incompetent party, as there is no life in it to amend by. To be amended, the writ should have original vitality, and even then terms are imposed where new parties or a new cause of action are introduced. 6 Tex. 531 and 561;8 Tex. 46. The wife may either sue alone, under peculiar circumstances, and make her husband party plaintiff, or she may sue jointly with her husband, but in no case can she sue by her next friend. O. & W. Dig. art. 1396; 2 Tex. 378;9 Tex. 297.

There was no valid gift of the Simpson certificate or bond from Uriah Conner to his mother, Mary Conner. To make a valid gift, either inter vivos or causa mortis, possession is essential. Uriah Conner held Simpson's bond for title, and simply desired, some ten or twelve days before his death, that his mother should have it, and this unaccompanied by any act of possession. This is not sufficient to vest title in Mary Conner, and the subsequent transfer of the certificate by Simpson to her, after the death of Uriah, at the instance of a third party, T. J. Conner, was unauthorized, as the right had already vested in the heirs of Uriah Conner. 1 Bouv. Inst. 276 and 277; Chevallier v. Wilson and Wife, 1 Tex. 161.

It is no answer to say that John and Mary Conner were heirs of Uriah Conner, and in this character have rights. They do not so declare, and if they did, rights and defenses would then belong to defendant of which he could not avail himself in this suit, especially as to notice and pleas as to John Conner. The issue of joint tenancy is not presented in the pleadings, and the pleadings should give full defense, by presenting every issuable fact essential to the rights of parties.

Donley & Anderson, for appellees, filed a very long argument, which it is deemed unnecessary to condense.

COKE, J.

This is an action of trespass to try title to a tract of land lying in Cherokee county, instituted by John Conner, one of the appellees, for the use and benefit of Mary Conner, his wife, as her next friend. The land is averred in the petition to be the property of Mary Conner, and her title is solely relied on for a recovery. Several years after the commencement of the suit, by an amendment, Mary Conner was made a formal party plaintiff to the suit with her husband. There were a trial, verdict, and judgment, for the appellees, who were plaintiffs in the court below. Various exceptions were taken during the progress of the...