Hough v. Hill

• Decision Date: 01 January 1877
• Parties: B. R. HOUGH ET AL. v. JOSIAH HILL ET AL.
• Court: Texas Supreme Court

47 Tex. 148

B. R. HOUGH ET AL.

v.JOSIAH HILL ET AL.

Supreme Court of Texas.

1877.

APPEAL from Milam. Tried below before the Hon. J. N. Onins.

The facts are given in the opinion.

H. D. Prendergast and C. B. Smith, for appellants, cited Titus v. Kimbro, 8 Tex., 212;18 Tex., 150;Watrous v. McGrew, 16 Tex., 506;Dailey v. Starr, 26 Tex., 562; Paschal's Dig., arts. 1233, 4686, 4693, 4984; 2 Bouvier's Ins., sec. 1946; Rogers v. Frost, 14 Tex.. 269;Rogers v. Bracken, 15 Tex., 564;Crane v. Morris, 6 Pet., 598;Kelly v. Jackson, 6 Pet., 622; Newman v. Keffer, 9 Casey, Pa., 442; Stroud v. Springfield, 28 Tex., 663; 1 Greenl. Ev., sec. 145, and note.

Terrell & Walker, also for appellants.

Hancock, West & North, for appellees.

GOULD, ASSOCIATE JUSTICE.

Appellants brought this action of trespass to try title against a number of defendants, the land in controversy being 2,866 acres of the Samuel Frost headright league. In an amended petition, the plaintiffs also pray for partition, if defendants or any of them be found to have title to a part of the land. Two of the defendants, in addition to their answer, filed a plea of intervention, asking judgment for the same land against some of their co-defendants; and one of the errors assigned is, allowing this plea and allowing intervenors to take judgment by default against their co-defendants. These co-defendants have not appealed, and it is not perceived that the appellants were injured or affected by the intervention or the default, or have any right to complain thereof. The result of the trial was a judgment for defendants, Hammond and Hammon, and from that judgment the plaintiffs, Hough and Connolly, prosecute this appeal. The record shows, that various deeds and instruments, offered in evidence by plaintiffs, were objected to as not properly authenticated, and that these objections were overruled, and the plaintiffs' various muniments of title admitted in evidence. It is not proposed to inquire whether any error was committed in overruling these objections; for such error, if committed, would constitute no sufficient reason why the judgment should be affirmed, if in other respects it is erroneous.

Evidently, if the court had ruled differently, the plaintiffs would have had an opportunity to prove the execution of the deeds and instruments, and thereby secure their admission in evidence; and an erroneous ruling in their favor should not operate to deprive them of this opportunity.

Assuming, then, that the evidence of plaintiffs was properly admitted, it is found that they introduced evidence of a grant of a league to Samuel Frost, in 1834; a conveyance, in 1835, by Frost to W. H. Steele, of 2,866 acres of the league, being the land in controversy; and a conveyance, dated in the town and county of Washington, on June 19, 1838, by W. H. Steele, to his brother, James S. Steele, which last conveyance also included the Robert Moffit and one half of the Samuel White league, making 9,508 acres.

Plaintiff also introduced a notarial copy of a power of attorney, dated October 4, 1838, and reciting that James S. Steele appeared before Thomas Harvey, notary public in the county of Matagorda, and, in the form of a public act, executed before said Harvey a power of attorney, attested by witnesses of assistance and instrumental witnesses, to Alexander H. Livermore, described as residing in the city of New Orleans, State of Louisiana, empowering him to sell and convey “all those lands or parcels of land contained in three deeds made, executed, and recorded in the county of Washington, in favor of said appearer or his assigns, containing, in the whole, nine thousand five hundred (9,500) acres, be the same more or less, English or American measure, which said deeds, the said appearer declared, are in the hands of his said attorney, or would now be more particularly described.” Plaintiffs also introduced another power of attorney, dated on February 25, 1839, reciting that James S. Steele appeared before the same officer in the town and county of Matagorda, and by a similar instrument, wherein he is described as a resident of the town, and one of the mercantile firm of Steele & Lewis of the same, appointed Amos H. Livermore, (it seems to have been first written Alexander, that word being erased, and Amos written over it,) of the city of New Orleans, State of Louisiana, his attorney, to dispose of the following-named and described lands lying in the Republic of Texas, the property of him, the said James S. Steele, viz., one half a league of land on the west fork of the Brazos river, in Milam county, originally granted to Samuel Frost by the Government of Mexico, and by the said Frost conveyed to William H. Steele, and by him conveyed to said James S. Steele. One league of land originally granted to Robert Moffit, lying in Robertson county, on the waters of the Little Brazos, and by him conveyed to William H. Steele, and by him conveyed to said James S. Steele; one league of land lying on the west bank of the Brazos river, above the mouth of Childress creek, originally granted to James S. Steele. By the recitals of this instrument, it appears that Livermore was to apply the proceeds to the payment of debts contracted by the before-mentioned firm, Steele & Lewis, (composed of James S. Steele, William H. Steele, and Asa M....