Hill & Jahns v. Lofton

• Decision Date: 07 February 1914
• Citation: 165 S.W. 67
• Parties: HILL & JAHNS v. LOFTON.
• Court: Texas Court of Appeals

165 S.W. 67

HILL & JAHNS v. LOFTON.

Court of Civil Appeals of Texas. Amarillo.

February 7, 1914.

Rehearing Denied March 21, 1914.

Error to District Court, Sherman County; D. B. Hill, Judge.

Action to quiet title by J. T. Lofton against George D. Jahns, E. L. Sharp, E. S. Hill, and others, in which defendants Hill, Sharp, and

another impleaded defendant Jahns and another as warrantors of their title. Judgment for plaintiff against the defendants, for Hill and another against Jahns and another, and for defendant Sharp against defendant Jahns, and Hill and Jahns bring error. Affirmed.

Goree & Turner, of Ft. Worth, and C. F. Rudolph, of Stratford, for plaintiffs in error. Wm. J. Berne, of Ft. Worth, for defendant in error.

HALL, J.

The following statement of the nature and result of the suit is taken substantially from the brief of plaintiffs in error: This suit was brought by the defendant in error, J. T. Lofton, against plaintiffs in error, George D. Jahns, J. R. Middlebrook, E. L. Sharp, U. S. Jahns, E. S. Hill, C. F. Rudolph, B. F. Loomis, and Dr. E. Snow, in the form of an action of trespass to try title to 540 acres of land in Sherman county, Tex., described as "section 25, block 2, G. H. & H. Ry. Co., patented by the state of Texas to Fred P. James in 1875, by virtue of land script No. 32/403, issued to G. H. & H. Railway Company, and transferred to said Fred P. James."

The plaintiff's original petition was filed in the district court of Sherman county, Tex., on March 27, 1909, and was in the usual form of trespass to try title, and to recover rents; the action for rents being subsequently dismissed.

Defendants, except Dr. E. Snow, in due time filed pleas of not guilty. The defendants Loomis and Rudolph subsequently disclaimed any interest in the land. Defendants E. L. Sharp, U. S. Jahns, and E. S. Hill, by proper pleading, sought to recover damages against their codefendants George D. Jahns and J. R. Middlebrook, as warrantors of their title, in the event plaintiff should recover title and possession of said land.

For title plaintiff relied upon the following instruments; the admission of most of them being objected to by defendants as shown by errors hereinafter assigned:

(1) Certified copy of patent, dated March 16, 1875, from the state of Texas to Fred P. James.

(2) Certified copy of special warranty deed, dated March 19, 1879, from Fred P. James and wife, Julia L. James, to Helen Schell, recorded in Sherman county, Tex., on August 2, 1884.

(3) Certified copy of will of Helen Schell, admitted to probate by the surrogates' court of the county of New York, N. Y., on April 19, 1890; recorded in Sherman county, Tex., on February 21, 1908.

(4) Original copy of deed from Josephine V. Lincoln and husband, James M. Lincoln, to J. T. Lofton, dated January 8, 1908, recorded in Sherman county, Tex., February 3, 1908.

(5) Original deed of correction from Josephine V. Lincoln and husband, James M. Lincoln, to J. T. Lofton, dated February 14, 1908, and recorded in Sherman county, Tex., on February 20, 1908.

For title defendants relied upon the following:

(1) Certified copy of patent, dated March 16, 1875, from the state of Texas to Fred P. James.

(2) Certified copy of judgment of the district court of Sherman county, Tex., rendered on November 9, 1904, in cause No. 64, entitled, "The State of Texas v. Heirs of F. P. James and Unknown Owners," decreeing a foreclosure of the plaintiff's lien on the tract of land in suit, and ordering the same sold to satisfy delinquent state and county taxes.

(3) Proof of order of sale issued in said cause No. 64.

(4) Sheriff's deed by virtue of said judgment and order of sale dated January 3, 1905, recorded in Sherman county, Tex., on January 23, 1905, conveying said property to J. L. Fuqua.

(5) Certified copy of quitclaim deed from J. L. Fuqua to N. Celsor, dated October 16, 1905, recorded in Sherman county, Tex., on January 13, 1906.

(6) Certified copy of special warranty deed from N. Celsor to George D. Jahns, dated December 19, 1905, recorded in Sherman county, Tex., on January 13, 1906.

(7) Certified copy of general warranty deed from George D. Jahns and wife, Nettie V. Jahns, dated June 11, 1906, recorded in Sherman county, Tex., on June 12, 1906.

(8) Certified copy of release of vendor's lien by which George D. Jahns releases all the purchase-money notes executed to him by J. R. Middlebrook, in payment for land in suit, dated March 21, 1908, recorded in Sherman county, Tex., on March 23, 1908.

(9) Certified copy, as well as original, of a general warranty deed from J. R. Middlebrook and wife, Laura Middlebrook, to U. S. Jahns and E. S. Hill, dated August 14, 1907, conveying an undivided one-half interest in the land in suit.

(10) Certified copy of a warranty deed from J. R. Middlebrook to E. L. Sharp, dated April 9, 1907, recorded in Sherman county, Tex., on February 22, 1908, conveying an undivided one-half interest in the land in suit.

(11) Certified copy of partition deed between E. L. Sharp and E. S. Hill and U. S. Jahns, recorded in Sherman county, Tex., on June 22, 1908.

(12) Certified copy of a judgment of the district court of Hansford county, Tex., rendered on the 18th day of June, 1901, in cause No. 17, entitled, "State of Texas v. Unknown Owners," foreclosing a tax lien on the land in suit, and ordering same sold to satisfy delinquent taxes.

(13) Order of sale issued in said cause No. 17, ordering said land sold to satisfy said taxes.

(14) Tax deed by virtue of judgment and order of sale in cause No. 17, executed by Bert O. Cator, sheriff of Hansford county, Tex., on September 10, 1901, to N. Celsor, and recorded in Sherman county, Tex., on September 11, 1901.

The cause was tried to a jury, and, after all the evidence was introduced, the court instructed the jury to return a verdict for plaintiff against each of the defendants for the recovery of title and possession of the land, and for costs of suit; and to return a verdict in favor of E. S. Hill and U. S. Jahns against their codefendants George D. Jahns and J. R. Middlebrook, for breach of warranty in the sum of $2,288, and for taxes in the sum of $32.85, aggregating a total sum of $2,320.85, and interest thereon from the date of the judgment at 6 per cent. per annum, and for costs, and in favor of defendant E. L. Sharp against George D. Jahns for a like amount, which was accordingly done, and judgment rendered in accordance therewith on July 10, 1912.

By their first assignment, plaintiffs in error insist that the court erred in admitting in evidence the certified copy of the deed from James and wife to Helen Schell, over the objection made by the defendants that plaintiff had not filed the affidavit or oath, as required by law, of his inability to produce and file with the papers of said cause the original of said instrument. It is asserted under this assignment that a certified copy of a recorded deed is inadmissible in evidence, in the absence of an affidavit by the party desiring to introduce it, filed among the papers of the cause in which it is to be offered as evidence, stating that the original of such recorded instrument has been lost, or that he cannot procure it, and it is urged that the language of article 2312, Sayles' Ann. Civ. St., would indicate that the affidavit required as a predicate to the introduction of a certified copy of a recorded instrument must be in writing, because the statute in express terms says that it shall be filed among the papers of the case. The reverse of this proposition has been held several times in this state, and it seems to be now well settled that the evidence of a witness on the stand as to inability to produce the original deed is equivalent to the statutory affidavit, and is sufficient to authorize the introduction of a certified copy. Trimble v. Edwards, 84 Tex. 497, 19 S. W. 772; Parks v. Caudle, 58 Tex. 216; Dohoney v. Womack, 1 Tex. Civ. App. 354, 19 S. W. 883, 20 S. W. 950; Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064; Smith v. Cavitt, 20 Tex. Civ. App. 558, 50 S. W. 167.

The question of the sufficiency of the oral evidence introduced in this case as a predicate for the introduction of the certified copy is not a question under this assignment, and will not be considered.

By the second assignment of error it is insisted that the court erred in admitting a certified copy of the will and probate thereof Helen Schell from the surrogate's court of the county of New York, over the objections of the defendants that there was no predicate for the introduction of said instrument, in this: That the preceding link in plaintiff's chain of title, to wit, a deed from Fred P. James and wife to Helen Schell, showed that at the time of said conveyance Helen Schell was a married woman, and there was nothing in said deed, nor in any of the evidence offered by plaintiff, to show that said property was the separate property of said Helen Schell, nor that she died seised of the same, and therefore no right was shown in her to dispose of it by will. The propositions following said assignment are, in substance, that a recital in a deed that the grantee is the wife of a certain named person is prima facie evidence against one claiming under said deed that, at the time of its execution, the grantee was a married woman, and puts the title to the property prima facie in the community estate, throwing the burden of showing facts which give the premises the character of separate property of the devisor upon the party claiming under the will; and, further, that a married woman can only dispose of one-half interest in community property by will. The trouble with this assignment is that it does not faithfully reflect the facts of the record.

The petition to probate the will, verified by J. M. Lincoln, one of the executors, sets out the fact of the death of the husband of Helen Schell prior to her decease. The will itself shows that J. M. Lincoln...