Houston Oil Co. v. Niles

• Decision Date: 24 October 1923
• Docket Number: (No. 353-3111.)
• Citation: 255 S.W. 604
• Parties: HOUSTON OIL CO. OF TEXAS et al. v. NILES et al.
• Court: Texas Supreme Court

255 S.W. 604

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

(No. 353-3111.)

Commission of Appeals of Texas, Section B.

October 24, 1923.

Rehearing Denied November 21, 1923.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Horace Wold against the Houston Oil Company of Texas and others, Edith L. Niles and others intervening. Judgment for defendants was reversed, and judgment rendered for interveners (in the opinion hereafter referred to as plaintiffs) by the Court of Civil Appeals (191 S. W. 748), and defendants bring error. Reversed, and remanded for new trial.

H. O. Head, of Sherman, Parker & Kennerly, of Houston, Oswald S. Parker, of Beaumont, for plaintiffs in error.

W. D. Gordon and Thos. J. Baten, both of Beaumont, for defendants in error.

McCLENDON, P. J.

This was a suit in trespass to try title, involving a league of land in Hardin county granted in 1835 to George W. Brooks as a colonist. The parties to the suit, Edith L. Niles et al., will be referred to as plaintiffs, and Houston Oil Company et al. as defendants, the relative positions they in effect occupied at the time of the trial. The trial court, upon a directed verdict, rendered judgment for defendants. This judgment was reversed, and judgment rendered for plaintiffs by the Court of Civil Appeals (191 S. W. 748).

We have reached the conclusion that the cause should be remanded to the district court for a new trial; and therefore that all questions of substantial importance raised by either party should be adjudicated.

Plaintiffs deraign title through a deed executed by George W. Brooks on February 3, 1836, conveying the land to Arthur Henrie. The latter, on February 22, 1839, conveyed to Thomas Sloo, Jr., who, in turn, on April 12, 1839, conveyed to James W. Byrne by an act of sale before William Christy, notary public for the parish of Orleans, state of Louisiana. The original of this act of sale was an archive of the notarial records of said parish, and was therefore not introduced in evidence, proof being made by duly authenticated copy by the proper custodian, certified as required by federal statutes. Plaintiffs' chain of title from James W. Byrne is in all respects regular. Objection to the introduction of this certified copy was made upon the ground that it was not competent in this manner to prove an act of sale conveying lands in the Republic of Texas, where the act of sale was in the archives of another jurisdiction; because the records of such jurisdiction, in so far as they deal with lands in Texas, are not proper archives of such jurisdiction, and a certified copy thereof is incompetent as evidence without proof of the execution of the original. These objections were properly preserved by bill of exceptions; but this bill was not embraced in the transcript filed in the Court of Civil Appeals. Defendants sought to have the record on appeal corrected in this regard by certiorari. This was denied by the Court of Civil Appeals, on the ground that the application for certiorari came too late. Therefore the question was not passed upon in that court. In view of the fact that this question will be important upon another trial of the case, we think it should be passed upon, regardless of the correctness of this ruling.

Under the authorities, we think there can be no doubt but that the trial court properly overruled the objection to the admission in evidence of the certified copy. Smith v. Townsend, Dallam Dig. 570; Watrous' Heirs v. McGrew, 16 Tex. 506; Williams v. Conger, 49 Tex. 600; Smith v. Gillum, 80 Tex. 120, 15 S. W. 794; Lumber Co. v. Pinckard, 4 Tex. Civ. App. 671, 23 S. W. 720, 1015 (writ of error refused); McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1098; Owings v. Hull, 9 Pet. 625, 9 L. Ed. 246. The following quotation from the Watrous Case has been repeatedly referred to with approval:

"The objections taken to the admission in evidence of the act of sale of the 14th of April, 1838, passed before the notary public in Louisiana, did not go to question the official character of the notary or the due execution of the conveyance. Proof upon these points, therefore, was unnecessary, and must be deemed to have been waived. But, if not, the act of the notary was authenticated under the Act of Congress of the 27th of March, 1804, to the form of which there was no objection, and which must be deemed proof of its genuineness and authenticity. Laws, of which we judicially take notice, recognize the Civil Code and Code of Practice of Louisiana as law in that state. Hart. Dig. pp. 18, 321; and see Ordinances, etc., of the Consultation. We therefore must judicially take notice that they are so. We must also take notice of the Spanish law, in force here at the date of the act in question; we must know that the act duly attested makes proof in Louisiana; that the original act of sale remained an archive in the office of the notary; consequently the plaintiffs could not be required to produce it; and its nonproduction was not a valid objection to the admission of the evidence produced by them."

Frost v. Wolf, 77 Tex. 455, 14 S. W. 440, 19 Am. St. Rep. 761, and Lumber Co. v. Gwin (Tex. Civ. App.) 52 S. W. 110, are cited by defendants as holding the contrary. The latter case appears to support defendants' contention. If so, it is directly in conflict with the decisions of the Supreme Court above cited. It does not appear to have reached the Supreme Court.

If we correctly understand the Frost Case, the copy there introduced in evidence was not a certified copy of the matrix or protocol duly authenticated by the proper custodian, but was the testimonio, which, under the previous authorities was clearly not admissible in evidence without proof of its execution. This question is fully discussed in Judge Williams' opinion in the above-cited case of McCarty v. Johnson. No authorities are cited by the Supreme Court in support of the holding in Frost v. Wolf, and the only authorities cited in briefs of counsel in support of their contention that the copy offered in evidence was not admissible are Hutchins v. Bacon, 46 Tex. 415; and Wood v. Welder, 42 Tex. 408, which cases deal with the admissibility of the testimonio and not certified copy of the protocol. We hardly think the Supreme Court would have rendered a decision overruling a long line of previous decisions of that court without at least calling attention to those decisions. We cannot but conclude that the Frost Case has no bearing upon the question now under consideration.

Defendants assert title in themselves under two separate theories: By limitation under the five and ten years' statutes; and as bona fide purchasers.

In order to recover under the five years' statute, the burden rested upon them to show both adverse possession and the payment of taxes prior to the time they became delinquent. Baker v. Fogle, 110 Tex. 301, 217 S. W. 141, 219 S. W. 450; Oil Co. v. Jordan (Tex. Com. App.) 231 S. W. 320. There is no consecutive period of five years' duration in which such payment is shown prior to the year 1905. And, from 1905 to 1911, inclusive, the record in its present condition does not, we think, afford sufficient evidence of adverse possession to warrant submission of that issue to a jury.

The evidence of adverse possession, as supporting the plea of limitation under the ten years' statute rests entirely upon the testimony of one S. A. J. Hare, who attorned in 1883 to E. H. Irvin, defendants' then predecessor in title. Hare's testimony is set out in full in the opinion of the Court of Civil Appeals, and need only be stated briefly here. Aside from the objections to its sufficiency hereinafter considered, we are clear in the view that it was sufficient to carry the case to the jury; but we do not think it is of such conclusive character as to support a directed verdict for defendants.

Hare, who was a squatter on the eastern end of the league, and one Calvin Gore, a squatter on the western end of the league, each attorned to E. H. Irvin by written instrument dated October 23, 1883, and recorded the following day. The body of these instruments reads as follows:

"For and in consideration of the use occupancy and enjoyment, rent free, of the house, field, and improvements, now occupied by me, and situated on the league of land in said county, granted to G. R. Brooks on the 22d day of August, A. D. 1835, by the government of Coahuila and Texas, and in further consideration of the right granted me to make use of any timber necessary for firewood, and to keep in repair the fence and houses—part of said improvements, I acknowledge myself the tenant of and to be in possession for E. H. Irvin, the owner of said league of land, and agree as such tenant to occupy and hold possession of said league of land."

On July 7, 1890, Hare executed another acknowledgment of tenancy in favor of John P. Irvin, in terms substantially the same as his previous acknowledgment of tenancy. This instrument was recorded on July 10, 1890, There were other acknowledgments of tenancy not necessary to notice.

Plaintiffs contend that these leases are restrictive, and do not carry the possession of the tenant holding thereunder beyond the boundaries of his actual possession. This question has been before the Texas courts a number of times, but has never been passed upon by the Supreme Court, unless the case of Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85, may be considered authority upon the question. Other cases upon the subject are Frazier v. Oil Co. (Tex. Civ. App.) 161 S. W. 20; Word v. Colley (Tex. Civ. App.) 173 S. W. 629; Hanks v. Oil Co. (Tex. Civ. App.) 173 S. W. 635; and Oil Co. v. Village Mills Co. (Tex. Com. App.) 241 S. W. 122. In each of these cases the leases under consideration were substantially the same as the leases in the present case, and some of them were in the identical language. In the Frazier Case the authorities are reviewed,...