Houston Oil Co. v. Kimball

• Decision Date: 01 December 1909
• Citation: 122 S.W. 533
• Parties: HOUSTON OIL CO. OF TEXAS et al. v. KIMBALL et al.
• Court: Texas Supreme Court

122 S.W. 533

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

Supreme Court of Texas.

December 1, 1909.

COPYRIGHT MATERIAL OMITTED

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

Action by Walter E. Kimball and others against the Houston Oil Company of Texas and others. A judgment in favor of plaintiffs was affirmed by the Court of Civil Appeals (114 S. W. 662), and defendants bring error. Affirmed.

Lanier & Martin, Taliaferro & Nalle, and Denman, Franklin & McGown, for plaintiffs in error. Pressley K. Ewing, J. D. Martin, E. E. Easterling, S. M. Johnson, and W. D. Gordon, for defendants in error.

BROWN, J.

Walter E. Kimball and others instituted this suit in the district court of Hardin county against the Houston Oil Company of Texas and others to recover a league of land granted by the government of Coahuila and Texas to O. C. Nelson, and located in said county. The plaintiffs' petition contained the usual allegations of trespass to try title, which was answered by the defendants by a plea of not guilty, and the statutes of limitation of three, five, and ten years, to which plaintiffs replied by a general denial and disability of some of the plaintiffs.

Briefly stated, the following are the principal facts of this case: O. C. Nelson, from whom both parties claimed, owned the land in controversy, and by a deed duly executed on the 28th day of November, 1837, conveyed the entire tract to David Brown, which deed was not recorded until the 16th day of March, 1842. On the 13th day of March, 1838, O. C. Nelson executed and delivered to Isom Parmer a deed conveying to him the same tract of land. This deed was recorded in the proper county on the 23d day of February, 1842. Payment of the consideration was acknowledged in each of said deeds. Plaintiffs in the court below had a consecutive chain of transfers from Isom Parmer to their father, and defendants had such transfers from David Brown down to the Houston Oil Company of Texas. The foregoing statement presents the case in its general outline; and such other facts as may be relevant to questions raised by assignments of error will be discussed and stated in connection therewith.

Plaintiffs in error request that this court again consider the point decided on certified question, now contending, as before, that the burden was upon the plaintiffs to prove that Parmer paid a valuable consideration to Nelson, and did not have notice of the deed from Nelson to Brown. We are of opinion that the decision of this court in Kimball v Houston Oil Company, 100 Tex. 336, 99 S. W. 852, is a correct interpretation of article 2757 (Hartley's Digest), being an act of 1836 (Laws 1836, p. 156, § 40) which was in force when the deeds from Nelson to Brown and from Nelson to Parmer were made. The first deed being unrecorded when the second was executed, the deed to Parmer conveyed the title unless those who claimed under the deed to Brown should prove that Parmer had notice of the deed to Brown when he bought, or that he did not pay a valuable consideration for the land.

The first assignment of error presented by the application reads as follows: "The court erred in refusing to give to the jury special charge No. 1 requested by the defendants, which is as follows: `Should you believe from the evidence herein that the deed from O. C. Nelson to Isom Parmer introduced in evidence herein was not executed and delivered by said O. C. Nelson, but that the said deed was a forgery, then you will find for the defendants herein.'" Under that assignment, the plaintiffs in error present this proposition: "Whether the deed referred to in the above-requested charge was a forgery, was an issue made by the pleadings in the case, and there was evidence tending to establish said issue, and it was error to refuse the requested instruction." There appears in the record an affidavit by Alvan Jones, in which he makes the statutory oath of a belief that the deed from O. C. Nelson to Isom Parmer was a forgery. When the certified copy of that deed was offered in evidence, defendants below made these objections to its admissibility: "We object to this instrument because it does not describe the land sued for in this suit, nor any other land; that the deed is ambiguous, and has no calls in it by which the land can be identified on the ground; that it conveys no land in any manner on account of its uncertainty of description, and does not mention this league of land, nor does it say in what county or state the land is located, nor does it refer to any other data by which it can be identified; that there are no allegations in the petition by which the patent and latent ambiguities can be explained." Defendants also offered to prove by expert surveyors that they could not from the field notes in the deed identify the land on the ground, and, in connection with their objection, they offered an original grant to James Rafferty for 4,428 acres as a colonist in the same colony on the Neches river, and bearing date the same as the O. C. Nelson survey, and issued by the same commissioner. The defendants did not call the affidavit of forgery to the attention of the court, nor did they object to the admissibility of the copy of the deed for want of proof of the execution of the original. Neither did they object to the admissibility of the certified copy because the loss of the original had not been proved nor its absence accounted for. Neither did they make the objection that the certified copy had not been filed among the papers for three days prior to the commencement of the trial and notice thereof given to the opposite party. Under this condition of the record, we hold that the certified copy was properly admitted, and was prima facie evidence before the jury of the execution by O. C. Nelson of the deed to Parmer. Article 2312, Rev. St. 1895; Hancock v. Tram Lumber Co., 65 Tex. 225. It is true that, notwithstanding the failure to make the objections stated, the defendants had the right to disprove the fact of execution of the deed, and thus overthrow the prima facie case of the plaintiffs.

If there was before the jury evidence sufficient to justify a finding that the deed from Nelson to Parmer for the land in controversy was a forgery, the refusal of the court to give the charge was error, and the judgment should be reversed. The plaintiffs in error do not point out any specific evidence which tends to prove the forgery of the deed, but rely upon circumstances as tending to establish that fact. It is undoubtedly true that forgery might be proved by circumstances, if sufficient to satisfy the mind of the jury of that fact, but the only circumstances called to the attention of the court on the subject are that Parmer and those who claim under him have not claimed the land openly for a great number of years, and that Parmer had in making his sale to Barnes introduced a warranty which the plaintiffs claimed furnishes sufficient ground of suspicion to justify a finding by the jury that the deed was not executed by Nelson. The facts shown by the record are that Parmer's deed was made in 1838, and was placed upon the records of Menard county in 1842, before the deed from Nelson to Brown was recorded. In 1845 Parmer sold the land to one Barnes in the city of New Orleans, La., and conveyed it to him by deed which contained the usual clause of general warranty, and, in addition thereto, the following: "And I do moreover bind myself, my heirs, executors, and administrators to return the purchase money if it shall of record in the said republic of Texas appear that the above-described land is in any way incumbered to the prejudice of this sale." It cannot be urged with any consistency that the length of time which transpired between the conveyance to Parmer and the time of his selling the land constituted such nonclaim as would justify any presumption against the validity of his title. It is, however, pressed upon the court that the clause above copied, which was inserted in the deed, manifests a distrust of his title on the part of Parmer, and therefore is a circumstance which would justify a jury in concluding that the instrument was probably a forgery. At the time that Parmer made the deed to Barnes, the deed from O. C. Nelson to Brown had been put upon the record, and, if he knew that fact and desired to sell the land because the title was bad, he would not probably have given the additional warranty that the record did not show any adverse claim, whereby his vendee would have the right to an immediate return of the purchase money without waiting for an eviction. He gave a general warranty such as a vendor selling in good faith would have given, and, in addition, that copied above which tends to show that he did not know of the prior conveyance to Brown. We are not able to see in this clause any evidence of a distrust on the part of Parmer of the title that he was conveying, much less does it tend to prove that Parmer knew that the deed to him was a forgery, and was therefore endeavoring to part with his title.

The long continued nonclaim on the part of Barnes and Kimball is urged, also, as circumstances from which the fact of forgery might be presumed, but we deem it unnecessary to argue that proposition, for surely counsel would not contend that the action or nonaction of persons who had no part in the execution of the instrument could be taken as evidence of the fact that Parmer had committed a forgery in securing the deed from Nelson. We are of opinion that there was no evidence before the jury which would justify the court in giving the charge requested.

The plaintiffs in error filed in the Court of Civil Appeals an additional assignment of error, as follows: "The trial court erred in its charge to the jury in instructing them to find for the plaintiffs for the land described in their petition, unless they should find for the defendants upon the defense of three years' limitation,...