Hollis v. Dashiell

• Decision Date: 21 November 1879
• Citation: 52 Tex. 187
• Parties: E. HOLLIS ET AL. v. W. B. DASHIELL ET AL.
• Court: Texas Supreme Court

52 Tex. 187

E. HOLLIS ET AL.

v.W. B. DASHIELL ET AL.

Supreme Court of Texas.

Nov. 21, 1879.

APPEAL from Kaufman. Tried below before the Hon. J. E. Dillard, special judge.

The case is stated in the opinion. The instructions of the court below are too lengthy for insertion.

W. H. Wood, for appellants.

I. The court erred in charging the jury that a confirmation of the sale from Brooks, administrator of Phelps' estate, was necessary.

II. The court erred in that portion of the charge to the jury, in reference to the transfer of the Benjamin Kimberling certificate from William Hollis to E. Rodolphus Besancon, the court in said charge having taken it for granted that said transfer was genuine, whereas the execution and delivery of said transfer was a question of fact for the jury to determine.

III. The transfer of the Benjamin Kimberling league and labor headright certificate from William Hollis to E. Rodolphus Besancon, dated October 14, 1845, (the original of which is sent up with the transcript for this court's inspection,) if valid, conveyed only an equitable title to any land afterwards acquired by virtue of said certificate, and would not be such a superior outstanding title as would defeat plaintiffs in this suit.

IV. The execution, delivery, and genuineness of said transfer from William Hollis to E. Rodolphus Besancon should have been submitted to the jury for their determination.

V. The court erred in charging the jury that defendants, being in possession of the land in controversy, are presumed in law to be rightfully in possession, and that they have a better title to the same than any one else, including both plaintiffs and intervenors, and are entitled to hold the same in this suit unless a stronger or superior title is established, by competent and sufficient evidence, to be in one or the other of their adversaries.

VI. The court erred in that portion of its charge in which the jury are instructed, that “the introduction of the original patent to the land granted to the Kimberling heirs had the effect to show that the judgment of the Harrison-county District Court has been carried into effect, and that the defendants have a good and legal title adjudged to them by a court of competent jurisdiction.”

The judgment referred to was rendered by said court, in Harrison county, July 9, 1869, in favor of W. B. Dashiell against intervenors, for the land in controversy. Said land was patented in 1858. (27 Tex., 434;28 Tex., 97;43 Tex., 1.)

VII. The court erred in its charge in reference to the pretended deed from William Hollis to E. Rodolphus Besancon, wherein it is stated that said deed was brought into court and not denied by plaintiffs nor by any one.

The court charged the jury as here stated. Plaintiffs did deny the validity of said deed, and objected to its being read in evidence. (27 Tex., 434;28 Tex., 97;43 Tex., 1.)

J. S. Woods, for intervenor appellants.

I. The court erred in admitting in evidence, in this case, the transfer from Benjamin Kimberling to Isaac Campbell, because it is insufficient as a deed to convey Kimberling's league and labor of land in Kaufman county, Texas.

There is no description of land in the deed; there is no number given to the certificate; there is no date of any survey at issuance of Kimberling's certificate. (14 Tex., 273; Paschal's Dig., art. 1000; 4 Kent's Comm., 8th ed., p. 510, mar. p. 460; Norris v. Hunt, 51 Tex., 609.)

II. The transfer, coming from Dashiell, did not come from the proper custody.

Defendants all claimed the land through and by virtue of a judgment obtained in Harrison-county District Court. The facts proved do not show any connection between them and Isaac Campbell. (28 Tex., 660;49 Tex., 582; 1 Starkie on Ev., 373, 379, 381, 383, 384.)

III. The deed from Kimberling to Campbell bears upon its face marks of suspicion. [Original deed sent to this court by motion of intervenors for inspection.] Said deed appears to be a transfer to land not then located.

IV. Said deed was dated January 9, 1838, and Kimberling's headright certificate had not issued at that date.

The date of deed from Kimberling to Campbell was January 9, 1838, and the date of the certificate by which the land in controversy was located was February 8, 1838.

The name of Benjamin Kimberling appears to have been spelled differently in three different places in said deed.

V. It does not appear by proof that said instrument was ever executed and delivered by Kimberling to Campbell.

VI. The great consideration mentioned in said deed casts suspicion upon the instrument.

The words “two thousand dollars” mentioned in said deed appear to have been subsequently written therein in a different handwriting and ink.

VII. The statement of facts does not show any attempt by plaintiffs or defendants to remove the suspicious circumstances accompanying the introduction of said deed. (Phil. on Ev., 318-320.)

VIII. The deed from Kimberling to Campbell did not pass anything more than an equitable interest in the land after its location.

IX. The deed introduced in evidence from Kimberling to Campbell did not prove within itself a superior, paramount outstanding title against these intervenors.

The certificate of Benjamin Kimberling, by which the land in controversy was located, was not issued by the government to him at the date of this deed from Kimberling to Campbell. There is no proof that assists or establishes the genuineness of the deed, except the deed itself.

X. An equitable title cannot be set up to defeat the legal title after the lapse of forty years.

XI. The court erred in admitting in evidence the judgment obtained in Harrison-county District Court in favor of W. B. Dashiell against these intervenors, because the same shows on its face to be a nullity, is void ab initio, &c.

The judgment shows that a guardian agreed to the decree divesting their interest to the land in this suit out of his wards and vesting it in W. B. Dashiell. It shows that Hall, the administrator of Kimberling's estate, agreed to the same. The decree shows a suit against an administrator and guardian ad litem, and that there was no issue joined between them and, so far as they were concerned, no real prosecution, nor real defense, nor that there was any controversy about the trust estate; that all that was done was based upon an agreement of the parties exercising duties of the highest trust. (49 Tex., 247; Paschal's Dig., art. 1478; 31 Tex., 239; Freem. on Judg., secs. 250, 545; 31 Md., 336;24 N. Y., 72;6 Hill., 242;57 Ill., 244;36 Md., 276;43 Cal., 306;29 Wis., 34;48 Miss., 643;41 Miss., 89;42 Miss., 506;47 Miss., 170.)

XII. The trustee cannot confess a judgment so as to bind the trust estate.

The intervenors showed that Hall was the administrator of Kimberling's estate, and O. Hendrick was guardian ad litem; that Emily Kimberling was administratrix with Hall, but not sued as such; that they were agents of the court, and acted in trust for these intervenors. (33 How., 278; 28 N. Y., 242.)

XIII. The proceedings of the District Court of Harrison county that rendered the judgment show that these intervenors were to all intents and purposes third parties to said judgment, and the same shows a fraud upon these intervenors. (21 Tex., 753;8 Tex., 146;39 Tex., 169;10 Tex., 4; Freem. on Judg., secs. 256, 336, 337, 489, 545; 9 East, 299; 63 Penn., 320;23 Ga., 168; Perry on Trusts, pp. 160, 256; 1 Story's Eq., secs. 250-252; Vanmeter v. Jones, 2 Green Ch., (N. J.,) 520; 2 Am. Rep., 135.)

J. J. Hill, for appellees.

I. The conveyance of Benjamin Kimberling to Isaac Campbell of his right to a league and labor of land, passed the title to the certificate to said Campbell which issued afterwards, and passed the title to the land which was acquired by virtue of the said certificate to the said Campbell and his assigns.

II. The conveyance from Benjamin Kimberling to Isaac Campbell is genuine. [Counsel reviewed at length the testimony to sustain his statement.]

III. The conveyance from William Hollis to E. Rodolphus Besancon of the Benjamin Kimberling league and labor certificate No. 79, passed all title out of the said Hollis to the said certificate and the land acquired by virtue of the said certificate, and left nothing to vest in his heirs, the plaintiffs in this suit. The plaintiffs in this suit claim as the heirs of William Hollis. The said conveyance bears date October 4, 1845. It is regular in form.

IV. The deed from William Hollis to Besancon was admissible as an ancient writing. It came from the proper custody. The defendants claimed under it. It is free from suspicion.

GOULD, ASSOCIATE JUSTICE.

The subject-matter of this litigation is a league and labor of land in Kaufman county, patented in the name of Benjamin Kimberling August 30, 1858. The headright certificate of said Kimberling, which was issued February 8, 1838, was first located in the name of Kimberling in Bastrop county, and in 1844 or 1845 was located on the land in controversy.

The heirs of William Hollis commenced this suit in April, 1875, bringing an action of trespass to try title against Dashiell and others. They sought to establish (1) an alleged transfer of his headright claim by Benjamin Kimberling to Isaac Campbell, dated January 9, 1838; (2) copy of deed from Campbell to Augustus Phelps, of date February 20, 1844, conveying the Bastrop-county league and labor of land, surveyed and then held by virtue of said Kimberling's headright certificate; (3) copy of deed from Brooks, administrator of Phelps' estate, of date May 2, 1843, conveying said certificate to Felix G. Lovell; (4) deed from Lovell to their ancestor. William Hollis, of date April 1, 1844. Through these transfers it is claimed that William Hollis became the owner of the Kimberling certificate, and that plaintiffs, as his heirs, became the equitable owners of the land patented by virtue thereof.

The widow and heirs of Benjamin Kimberling intervened, claiming the land as theirs, basing...