Herndon v. Vick

• Decision Date: 16 April 1896
• Citation: 35 S.W. 141
• Parties: HERNDON v. VICK.
• Court: Texas Supreme Court

Page 141

35 S.W. 141

HERNDON v.VICK.

Supreme Court of Texas.

April 16, 1896.

Error to court of civil appeals of First supreme judicial district.

Trespass to try title by Andrew J. Vick against A. C. Herndon, guardian, and others.From a judgment of the court of civil appeals affirming a judgment in favor of plaintiff(33 S. W. 1011), defendant Herndon brings error.Reversed.

Jas. R. Masterson, Stewart, Stewart & Lockett, and Baker, Botts, Baker & Lovett, for plaintiff in error.Ewing & Ring, for defendant in error.

GAINES, C. J.

The following statement of this case and of the questions presented for determination is taken from the opinion of the court of civil appeals:

"Appellee(the defendant in error here) brought suit against a number of persons, including Jeremiah Cole, and also against the unknown heirs of such persons, to establish his title to and recover a tract of 400 acres of land, a part of the lower half of a league granted to William Vince by the Mexican government, July 21, 1824.The defendants were cited by publication, and none of them answered, except the appellant, A. C. Herndon, the guardian, in Texas, of the estate of Frederick Cole, alleged to be non compos mentis, who answered, alleging that his ward was the only heir of Jeremiah Cole, deceased, and, as such, held title to the lower half of the Vince league.In reply to the plaintiff's allegation of title to the land, under the statute of limitation, he alleged that the ward, Frederick Cole, had been insane since the year 1840.He also, by cross petition, sought affirmatively to recover the land.After this answer and plea in reconvention was filed, plaintiff filed an amended petition, from which he omitted, as defendants, Jeremiah Cole and his unknown heirs, and the cause proceeded to trial, as between plaintiff and the other defendants, on this amended petition, and, as between plaintiff and appellant, on the latter's plea in reconvention.The plaintiff claimed under a deed from the heir of Vince, executed on the 8th day of September, 1838, and produced a complete chain of title from the grantee therein, consisting of a number of mesne conveyances.He also established, through an adverse possession, cultivation, and use of the land, which commenced in 1887, and had been since continued under deeds duly registered, accompanied by payment of all taxes, title by limitation against all persons, unless it was defeated as to Frederick Cole by the fact of his insanity.Appellant claimed through an authentic act of sale from Vince to Edward Dickinson, executed on the 24th day of November, 1830, before the alcalde or judge of Austin's colony, conveying the lower half of the Vince league, less a labor, the original of which was on file in the clerk's office in Austin county, and a copy of which, certified by the clerk of that county on the 14th day of April, 1838, was recorded in Harris county; and both the original and record were admitted in evidence, both being in the Spanish language.Appellant, then, to show a conveyance from Dickinson to Jeremiah Cole, of whom Frederick Cole is the sole heir, offered a certified copy from the records of Harris county of the following paper in the English language:

"`Columbia, Brazoria County, May 1, 1838.I do hereby transfer all my right, title, and interest to Jeremiah Cole, for the consideration of twenty-five hundred dollars, to me in hand paid, the receipt of which is hereby acknowledged before the undersigned witnesses, as witness my hand and seal day and date as above to the within deed.Edward Dickinson.[L.S.] Witness: Andrew Orr.R. M. Craven.Thos. Cole.Signed, sealed, and delivered in presence of D. J. Holt as acting justice of the peace for and in the aforesaid county.D. S. Holt, Notary Public ex Officio.

"`Republic of Texas, County of Harrisburg.I, Lewis B. Harris, clerk pro tem of the county aforesaid, do hereby certify that the witness, Thomas Cole, who signed this instrument, personally appeared before me, and, being duly sworn, said that he saw Edward Dickinson sign this instrument for the purposes in it mentioned and contained, and that he signed the same as a witness, as also did R. M. Craven in his presence.Houston, May 10, 1838.Lewis N. Harris, Clerk pro Tem.

"`Recorded May 10, at 9 o'clock a. m., 1838.'

"Plaintiff objected to the admission of the document on the ground that it contained no description of the land in controversy, or of any other land; and the appellant then gave in evidence the record book in which both the act of sale from Vince to Dickinson and the above paper were recorded, and from it these facts appeared: `The record of the purported transfer to Jeremiah Cole immediately followed the record of the certified copy of the deed from Vince to Dickinson, with about the intervening space between the two usual in the case of other instruments recorded in said book.At the end of the purported transfer to Jeremiah Cole there was a notation showing the date when the same was recorded, and there was no notation showing the date of the record after the record of the transfer to Dickinson, which notation, when made, it was usual to make at the foot of the...