Hooper v. Hall

• Decision Date: 01 January 1871
• Citation: 35 Tex. 82
• Parties: RICHARD HOOPER v. F. HALL.
• Court: Texas Supreme Court

35 Tex. 82

RICHARD HOOPER

v.F. HALL.

Supreme Court of Texas.

1871.

1. In trespass to try title, to entitle the plaintiff to recover, even against a naked possessor, he must show that he is the absolute owner of the land in controversy, not only as against the defendant, but as against all other persons.

2. On the trial of an action of trespass to try title, the defendants offered in evidence duly certified copies of a power of attorney and of a deed, which were executed in 1835 before a judge of the first instance, with the formalities necessary to constitute them public or authentic acts. Plaintiff objected to the copies, because the originals were not accounted for; and also because the copies had not been filed in the cause three days prior to the trial, and notice thereof given him. Held, that the objections were properly overruled. The copies were made evidence by the ninety-first section of the act of May 13, 1846 (Pas. Dig. art. 3717), and this court has heretofore settled that it is not necessary to file such copies previous to the trial. Hubert v. Bartlett, 9 Tex. 102; and Andrews v. Marshall, 26 Tex. 212, cited by the court.

3. It was further objected, that there was no proof that the originals had been filed in the office of the judge of the first instance prior to the first Monday in February, 1837, so as to authorize the admission of the copies by virtue of the act above cited. Pas. Dig. art. 3717. But held, that in the absence of proof to the contrary, it is to be presumed that the originals were so filed at the proper time; and the certificate of the clerk who has the lawful custody of the originals, to the effect that they are archives of his office, is tantamount to original file marks showing them to have been so filed, inasmuch as the originals could not be archives unless they had been so filed at the proper time.

4. In a county clerk's authentication of a public instrument executed before a primary judge in 1835, he certified the copy to be a “true copy taken from the original in my office and an archive thereof.” Held, that the certificate is sufficient.

5. See this case for an instance in which a muniment of title to real estate, executed by an agent in 1835, was held to have been properly admitted in evidence, notwithstanding that the agent's power of attorney, from the owner was not produced nor directly proved.

APPEAL from Harrison. Tried below before the Hon. J. B. Williamson.

This veteran case was commenced as far back as 1849. Though a suit for real estate, it was brought by Hooper “for the use of the legal heirs of Jesse Parchman, deceased,” naming them--an anomaly of which there is at least one other example in the courts of this state. This case was before this court in 1867, on a former appeal, which is reported in 30 Tex. 154; to which report reference may be had for some of the facts. In the opinion delivered on the present appeal, a clear though succinct statement will be found of such facts as are essential to a full comprehension of the rulings.

H. McKay, for the appellant.

James Turner and W. Stedman, for the appellees.

OGDEN, J.

In 1867, the appellee obtained a judgment in the district court, and the cause was brought to this court by the appellant, when the judgment was reversed, and the cause remanded. In 1870, it was again submitted to a jury in the district court, upon thirty-eight special issues. From the judgment rendered upon the verdict of the jury, the appellant has appealed again to this court, and assigns several errors as causes for a reversal of the judgment. It is not deemed necessary to notice each assignment in its order, as the determination of the last will dispose of the others.

This was an action of trespass to try title, in which the plaintiff must recover, if at all, on the strength of his own title, and not upon the weakness of, or want of title in, the defendant in possession. In other words, the plaintiff, in order to entitle him to recover as against a naked possessor, must show that he is the absolute owner of the land in controversy, not only as against the defendant, but as against all other persons. This was the principal question for determination in the court below, and that determination is now complained of as error.

In this cause the various findings of the jury in the lower court, which are not complained of here, have settled many questions which might otherwise have been left doubtful; and we shall therefore only refer to them, in order to a correct understanding of those questions which are not acquiesced in. From the verdict of the jury, the fact is established, that in 1853 the plaintiff became the undisputed owner of a grant, or patent to the land in question, issued by the republic of Texas to Amy Dunman, in the year 1841. This would have given appellant an absolute title to the land, precursive of all others, and should have entitled him to a judgment in this cause, provided that no other title or grant for the same land had issued from the state previous to the issuance of the patent to Amy Dunman. The jury further find, that a grant for the same land did issue from the state to Hiram Blossom, in 1835, and that the appellant held a regular transfer of title to the same land from Blossom, made in 1842. The validity of the grant to Blossom, in 1835, is not questioned by either party to this suit, and must therefore be considered as vesting the title in Blossom at the time of the grant. It follows, that as the state had parted with the title in 1835, it had no title or interest in the land in 1841, to grant to Amy Dunman, and she and her assignee receive none by virtue of the patent issued to her.

But appellant still had a prima facie good and valid title to the land by virtue of the conveyance from Blossom to Watson in 1842, and the judgment of the lower court should have been in his favor, unless the defendant had shown a conveyance of the same land to himself, or some one else, from Blossom, prior to the deed to Watson, in 1842.

The jury found that the defendant did receive a conveyance for six...