Hervey v. Edens

• Decision Date: 13 December 1887
• Citation: 6 S.W. 306
• Parties: HERVEY <I>et al.</I> v. EDENS.
• Court: Texas Supreme Court

6 S.W. 306

HERVEY et al. v. EDENS.

Supreme Court of Texas.

December 13, 1887.

Appeal from district court, Navarro county; SAMUEL R. FROST, Judge.

A statement of the case fully appears in the opinion of the court.

W. J. McKie, for appellants. Simpkins & Neblett, for appellee.

GAINES, J.

This was an action of trespass to try title, brought in the court below by appellee for the recovery of a tract of land, consisting of 480 acres, and being the N. ½ of the James Wishart survey. The defendant Hervey was merely the tenant of his co-defendant, and pleaded not guilty. Defendant Walker pleaded not guilty, the statute of limitations, and improvements in good faith. Both parties claimed title under George Butler as the common source. Plaintiff introduced in evidence the following conveyances: (1) A deed of trust from George Butler to W. N. Stowe as trustee to secure a note for $4,000, payable to Duncan, Sherman & Co., due January 11, 1876; (2) a conveyance of the legal title from Butler and wife to H. C. Emmett, dated July 19, 1875; (3) deed of assignment from Duncan, Sherman & Co. to W. D. Shipman, dated July 27, 1875; (4) deed from Emmett to Shipman, dated July 26, 1886; (5) deed from Shipman, assignee, to plaintiff, dated July 1, 1884. The defendants' chain of title as introduced upon the trial was as follows: (1) A deed from Emiline Butler as sole heir of George Butler, of the date of February 6, 1882, to J. C. Roberts; (2) deed from J. C. Roberts to defendant James C. Walker, dated March 14, 1882. The cause was submitted to a jury, and the trial resulted in a verdict and judgment for plaintiff against both defendants. The vital question in the case is whether the conveyance from Butler and wife to Emmett was a conditional sale or a mortgage. If a mortgage, never having been in any manner foreclosed, and the notes secured by it having been barred at the date of the trial, the title to the land remained in Butler, and, his wife having been shown to be his sole heir, passed to her, and by her conveyance to Roberts, and Roberts' deed to defendant Walker was vested in that defendant; but, if it was a conditional sale, then, there being no evidence that the condition was ever performed within the time stipulated, the title became absolute, and became vested in plaintiff, provided it passed from Duncan, Sherman & Co., for whose benefit the deed to Emmett was made, by their assignment to Shipman. There were other questions, however, raised upon the trial, and properly brought up by review to this court, and they will be disposed of, as far as may be, in the order in which they are presented.

The deed of trust from Butler and wife to Stowe, trustee, and also the conveyance from the same parties to Emmett, described a part of the lands conveyed as "also 960 acres of land, being the divided one-half of two tracts of land of 960 acres, out of patents 278, 279, granted by the state of Texas to A. B. Watrous, assignee of A. McDonald and J. Wishart, situate in Navarro county, Texas, on Richland creek, and set apart to George Butler by commissioners appointed by the district court of Navarro county, March 19, 1869, recorded in county records, Book D, p. 352, together," etc. After introducing the deed of trust, plaintiff offered the record of the judgment there referred to, for the purpose of identifying the land so described as the same land sued for in his action. This was objected to, on the grounds that the defendants had not been served with notice that the judgment would be offered in evidence as a muniment of title, and because it was immaterial. The evidence was admitted, and the defendants excepted, and now assign its admission as error. But in this there was no error. It was incumbent upon plaintiff to show which half of the Wishart survey had been "set apart to George Butler by commissioners appointed by the district court of Navarro county," so as to aid the description in his deed. The judgment itself was the best evidence of its contents, so that it was clearly pertinent. The statute does not require notice to be given of the intention to introduce in evidence a written instrument. It merely provides that deeds which have been properly recorded may be admitted in evidence without proof by filing them three days before the trial, and giving notice thereof.

The plaintiff also offered in evidence a copy of a deed of assignment made by Duncan, Sherman & Co. to W. D. Shipman, and many objections were interposed by defendants both to the mode of proof, and to the sufficiency of the deed itself to convey the title of the assignors. The deed was, however, admitted, and exceptions properly reserved. One ground of objection was that a proper predicate was not laid for the introduction of parol evidence of its contents. But this ground is not tenable. Shipman, the assignee, testified by deposition that he had the deed in his possession in the city of New York; that vast properties situate there and elsewhere had been conveyed to him by it; that it was his muniment of title, and that he declined to part with it. The deed of assignment being without the jurisdiction of the court, it was not within the power of plaintiff to produce it, and secondary evidence of its contents was therefore admissible. It was further objected that the execution of the deed was not properly proved. The copy offered in evidence purported to be signed by W. B. Duncan, W. W. Sherman, and T. H. Grain, who were proved to compose the firm of Duncan, Sherman & Co., and by W. D. Shipman, the assignee, and was attested by three subscribing witnesses. Two of these attesting subscribers testified by deposition that they saw the deed signed by Duncan, Grain, and Shipman, and signed the same, also, as subscribing witnesses. One of them swore that he also witnessed the signature of Sherman. Sherman also testified to the execution of the deed by himself. In addition to this, each of these witnesses deposed that the original deed of assignment was before him as his deposition was taken, and attached a copy thereto, which one, at least, swore he had compared with the original, and knew to be a copy. This proved the others; the records showing that each was a duplicate of the others. This was sufficient to establish the execution and contents of the instrument, and it was not error to admit the copies. But appellee complains that, because three copies were introduced, this was error. The depositions were taken separately, and hence, in order to prove the instrument, it was proper to attach a copy for the purpose of complete inspection. No possible prejudice has accrued to plaintiff by the introduction of three copies.

It was further objected that the deed of assignment, having been made in New York, was not sufficient to convey the title of assignors to lands lying in this state. This presents a question which is worthy of more consideration. The authorities generally agree that an assignment made under a decree of court by virtue of the insolvent laws of one state does not pass title to real property situate in another. Moseby v. Burrow, 52 Tex. 396, and authorities there cited; Wood v. Parsons, 27 Mich. 159; Houston v. Nowland, 7 Gill & J. 480. See, also, Barnett v. Pool, 23 Tex. 517. It is even held that a voluntary assignment, though executed with apt words to convey lands in a foreign jurisdiction, and in conformity to its laws for the conveyance of such property, does not operate as a conveyance of real estate lying beyond the limits of the state, where executed as against creditors resident within the state where the property is situate. Such seems to be the weight of authority when the assignment is statutory, though voluntary, or where it is in violation of the laws of the latter jurisdiction. Osborne v. Adams, 18 Pick. 245; Whart. Confl. Laws, § 275, and cases there cited. But a conveyance or an assignment may be good as between the parties, and void as to creditors; so that if the rights of creditors are not involved, and the deed of assignment contain words sufficient to convey the property in controversy, and it be executed with the solemnities required by the law of the place where the property is situate, no reason is seen why the deed should not be held to pass the title as between the assignor and the assignee, and those claiming by conveyances from them. The distinction between the claim of creditors, and that of the heirs or subsequent vendees of the assignee, is recognized in most of the authorities. The validity of such assignments, as between the parties and their privies, as to foreign lands, has been upheld in several cases, and we have found none in which the contrary doctrine is maintained. Lamb v. Fries, 2 Pa. St. 83; Heyer v. Alexander, 108 Ill. 385; Chafee v. Bank, 71 Me. 514. See, also, Burrill, Assignm. § 304. It is also urged that the assignment is not a statutory one, but that is a question which we need not decide. Whether statutory or not, it is voluntary, and contains apt words of conveyance of all the property of the grantors. Though the laws of the state of New York may be framed to meet such a case, and though they may direct the mode in which the trust shall be administered, and the proceeds applied upon the debts, this can make no difference in a controversy in which the rights of creditors are not involved. Here, the contest is between a party who claims as a purchaser from the assignee, and a defendant who claims under conveyances from the heir of the grantor of the assignors, unaffected by the claim of any creditor whatever.

It is still further objected to the deed of assignment that it does not sufficiently describe the property claimed by plaintiff to have been conveyed by it. To this it must be replied that it conveys in general terms all the property then owned by the firm of Duncan, Sherman & Co., and all the property of each member of that partnership, wherever situated; that this can be made certain...