Houston Oil Co. of Texas v. Goodrich

• Decision Date: 10 February 1914
• Docket Number: 2524.
• Citation: 213 F. 136
• Parties: HOUSTON OIL CO. OF TEXAS et al. v. GOODRICH et al.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F. 136

HOUSTON OIL CO. OF TEXAS et al. v. GOODRICH et al.

No. 2524.

United States Court of Appeals, Fifth Circuit.

February 10, 1914

On Rehearing, April 7, 1914.

Shelby Circuit Judge, dissenting.

This was an action instituted by certain of the defendants in error, who were plaintiffs in the court below, to recover the title to and possession of a tract of land consisting of 2,578 acres of the northern portion of the Felder league situated in Hardin county, Tex. Certain other of the defendants in error were permitted to intervene and assert their title to the land in controversy. The action was filed in the United States Circuit Court, for the Eastern District of Texas, that court having jurisdiction of the case by reason of the diversity of citizenship of the original parties to it; and was transferred to the District Court for the same district upon the taking effect of the Judicial Code. The interveners claimed title under a remote grantor in the plaintiff's chain of title, originally both as against the plaintiffs and defendants, but, before final disposition of the cause, the plaintiffs and interveners combined their interests in the land, so that the only question decided by the District Court was the title to the land as between the plaintiffs and interveners upon the one hand and the defendants upon the other hand. There were amended petitions, interventions, and answer and cross-actions filed by the respective parties, but they are of no importance in considering the questions presented by the writ of error. The court below, after the evidence was completed, directed a verdict for the plaintiffs and interveners against the defendants for the land in controversy, and against the defendant the Texas Builders' Supply Company for the value of sand taken by it from the lands in the amount of $1,286, and in favor of that company against the defendant the Houston Oil Company for like amount. The writ of error was sued out by the defendants the Houston Oil Company, the Kirby Lumber Company and the Maryland Trust Company, alone. Their codefendant, the Texas Builders' Supply Company, refused to join in the writ of error, and a severance was had as to it. The only error assigned and insisted upon was the action of the court below in directing a verdict for the plaintiffs and interveners for the land sued for.

T. M. Kennerly, of Houston, Tex., and Charles T. Butler, of Beaumont, Tex. (H. O. Head, of Sherman, Tex., of counsel), for plaintiffs in error.

John L. Little, of Kountze, Tex., and E. E. Easterling, H. M. Whitaker, W. D. Gordon, and Thos. J. Baten, all of Beaumont, Tex., for defendants in error.

Before PARDEE and SHELBY, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge (after stating the facts as above).

The Felder league, a part of which was the land in dispute, was granted by the government of Mexico to Charles A. Felder, under whom both parties claim prior to 1836. The plaintiffs claimed through a deed, claimed to have been executed by the grantee Felder to one John A. Veatch on June 18, 1839, which was recorded in Liberty county, Tex., on October 21, 1839, and thereafter in Menard or Tyler county, Tex., and still later in Hardin county, Tex., Veatch conveyed the land to James Morgan by deed dated March 15, 1841, and the interveners claimed as heirs of James Morgan. James Morgan conveyed to W. D. Lee by deed dated October 17, 1845, which was witnessed but neither acknowledged, proven, nor legally recorded. By agreement between plaintiffs and interveners, this deed was admitted in evidence. The plaintiffs claim title, through intermediate grantors, from W. D. Lee. In the chain of title, under which the plaintiffs claimed, was a grantor named William Walker, who received a conveyance of the land September 22, 1848, from Richard C. Washington, who had in turn received a conveyance from Benjamin E. Green, who was W. D. Lee's grantee. A descendant of William Walker produced what purported to be the original deed from Charles A. Felder to John A. Veatch, together with the admitted original testimonio, or duplicate original Spanish grant, delivered by the Mexican Commissioner to Charles A. Felder, the original grantee; the protocol, or first original, having been deposited in the public archives and on file, at the time of the trial, in the General Land Office of Texas, and therefrom produced upon the trial.

The defendants traced title back through intermediate grantors to one William Daniels. The original grantee, Charles A. Felder, conveyed to William A. Daniel on the 10th of June, 1839, eight days before his conveyance to plaintiffs' and interveners' predecessor in title, John A. Veatch. However, the conveyance from Felder to Daniels was not recorded until February 23, 1842, and under the then Texas statute the first recorded conveyance took precedence. The record title was therefore in plaintiffs and interveners, if the deed from Felder to Veatch was a genuine deed. The defendants filed an affidavit of forgery as to the signature of the grantor to this deed, under the Texas statute, and this had the effect to put in issue the genuineness of the signature of Charles A. Felder to the deed to John A. Veatch. This is the only issue in the case upon this appeal, so far as the title depends upon the record. Affidavits of forgery were filed by the plaintiffs and interveners as to certain deeds relied upon by defendants, but no evidence of forgery was offered by the plaintiffs and interveners to sustain the issue.

The defendants also claimed title by the statutes of limitation of Texas of three, five, and ten years, under two separate claims of possession. The first was that of Elizabeth Browning and her successors along about the year 1870, and the second was that of the Texas Pine Land Association, the immediate grantor of the Houston Oil Company, one of the defendants, from 1892 until 1901, in connection with the possession of the Texas Builders' Supply Company, also a defendant, which removed sand from the land in controversy under three contracts with the Houston Oil Company, extending over a period from the 16th day of October, 1902, until the beginning of the suit on June 7, 1911.

There are therefore two questions presented by the record for decision:

(1) Was the deed from Charles A. Felder to John A. Veatch shown without conflict in the evidence to be a genuine deed? The court below held that it was, and defendants complain here of this ruling.

(2) Was there evidence which the court below should have submitted to the jury in support of the defendants' pleas of the statutes of limitations, based either upon the possession of Elizabeth Browning and her successors in 1870, or upon the possession of the Texas Pine Land Association, defendants' immediate grantor, and that of the Texas Builders' Supply Company, its contractor from 1902 until the bringing of the suit. The court below held that there was no question of fact to be submitted to the jury upon these pleas, and the defendants also complain of this ruling.

1. Upon the issue of the genuineness of the signature of Charles A. Felder to the deed purporting to be from him to John A. Veatch, the defendants introduced the original protocol, containing the signed application of Felder for the league granted to him by the Mexican government, and the testimony of two handwriting experts, who had compared the signature to the protocol with what purported to be Felder's signature to the original deed to Veatch, and testified that the signatures did not resemble each other and in their opinion were not written by the same person. The applicant for land grants in Texas was not at the time of the application of Felder required to sign the application in person and in his own handwriting, though presumptively he would do so. This was the evidence relied upon by defendants to sustain the issue of forgery. The original deed from Felder to Veatch was produced by a witness who was the descendant of an intermediate grantee of the land from Veatch, and therefore found in the proper custody. It was an ancient deed, free from marks of suspicion. It was found in association with the admittedly genuine original duplicate Mexican grant to Felder in the custody of the same producing witness. It bore a certificate of acknowledgment under the hand and official seal of an ex officio notary public of Texas, the signature to which was shown to be in the handwriting of the notary. The law of Texas did not require the signature of a deed to be written by the grantor, even by a grantor who was able to write, provided it was properly acknowledged by him. There was also evidence of the good character of the grantee Veatch. Upon this evidence, we are not prepared to say that the court below should have submitted the issue of forgery to the jury.

2. Upon the issue of the statute of limitations (a) as based upon the possession of Elizabeth Browning and those succeeding her in possession, and (b) as based upon the possession of the Texas Pine Land Association, and of the Houston Oil Company, through the Texas Builders' Supply Company, under its contract with that company.

(a) The defendants introduced evidence tending to show that in 1870 or 1871, a widow, Elizabeth Browning, occupied a house on the Felder league and cultivated land upon it, and cut timber from it, until the year 1875; that one Madison Cane succeeded her in possession, moving into the house before she had removed from it, and continuing in possession for three years, making three crops; that a man named Bill Cane, who had been employed by Madison Cane while the latter was in possession, took possession upon his departure, and stayed two years, tending the ferry on the east side of Village creek...