Kirby Lumber Corporation v. White, 18174.

• Decision Date: 31 March 1961
• Docket Number: No. 18174.,18174.
• Citation: 288 F.2d 566
• Parties: KIRBY LUMBER CORPORATION, Appellant, v. Samantha Smart WHITE et vir, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F.2d 566 (1961)

KIRBY LUMBER CORPORATION, Appellant, v. Samantha Smart WHITE et vir, Appellee.

No. 18174.

United States Court of Appeals Fifth Circuit.

February 8, 1961.

Rehearing Denied March 31, 1961.

Frank G. Evans, III, Houston, Tex., Fountain, Cox, Gaines & Fox, Joyce Cox, James A. Pakenham, Houston, Tex., for appellant, Kirby Lumber Corp.

Leonard E. Choate, Beaumont, Tex., Robert W. Hillin, Liberty, Tex., for appellee.

Before TUTTLE, Chief Judge, and CAMERON and WISDOM, Circuit Judges.

CAMERON, Circuit Judge.

Samantha Smart White (hereinafter called appellee), joined pro forma by her husband McKinley White, sued appellant Kirby Lumber Corporation for an undivided one-fifth interest in four tracts of timbered land aggregating one hundred ninety acres in Newton County, Texas, and for the value of timber cut by appellant from said land. The action, being one in trespass to try title, was begun in a state court of Texas and was removed on grounds of diversity of citizenship to the court below where it was tried before court and jury.

After denying appellant's motion for a directed verdict, made when appellee rested and repeated after all the evidence was in, the trial court submitted the case to the jury upon four special issues, which the jury found in favor of appellee. Each party filed a motion for judgment on the verdict and appellant filed also a motion for judgment notwithstanding the verdict and a motion for new trial. The court below denied all motions and entered judgment based upon the jury's answers to the special interrogatories, in which it awarded appellee title to an undivided one-tenth interest in the land, together with damages in the sum of $1,380.15 representing one-tenth of the value of the timber cut by appellant during the years 1956 and 1957.

Dennis and Harriet Smart were a common source of title through whom both parties claimed. These two had six children: Enoch Smart, a son who died intestate when he was a child and while Dennis and Harriet were still living; a daughter, Kathy (sometimes known as Katherine or Cassie), the mother of appellee Samantha Smart White, who also died before Dennis and Harriet; and Samuel Smart, J. D. Ed Smart, Marge Smart, and Kizzie Smart, all of whom died after their father, Dennis Smart.

Appellee claimed to own through inheritance from Dennis and Harriet, her grandfather and grandmother, an undivided one-fifth interest. Manifestly the court below permitted her to recover only as heir of her grandmother the one-tenth interest for which judgment was entered, after it found that the grandfather had disposed of his interest to appellant's predecessor in title, George W. Powell.

Appellant introduced in evidence from the land records of Newton County, Texas, pursuant to abstract of title it had filed under the Texas Statute copied in footnote 2 infra, a series of deeds executed in 1895 and 1896 by Dennis Smart and his four living children, by which they partitioned the lands involved in this action by cross conveyances to each other; and deeds conveying the lands to George W. Powell. Although these deeds were attacked as forgeries, the court below evidently thought there was not sufficient evidence to submit their claimed invalidity to the jury, as it refused appellee's requested instruction asking that this be done. The court admitted testimony to the effect that Powell was a man of good reputation for integrity, truthfulness and honesty, and there was no evidence to the contrary.

A recorded conveyance was also introduced in evidence by which Powell conveyed the lands here involved on March 1, 1902 to George W. Carroll. The series of conveyances mentioned in the foregoing paragraph were filed for record and recorded at about the same date. As a part of its chain of title, appellant introduced in evidence also three deeds which are claimed by appellee in her argument before us to be forgeries:

(a) Certified copy of a deed dated February 28, 1902 and given by Samantha Smart to G. W. Powell, which was acknowledged on the same date before C. H. Howard, Notary Public of Newton County, and was certified as having been filed for record March 1, 1902 and duly recorded.

(b) Photostatic copy of original deed dated April 23, 1900 from Dennis Smart, Samantha Smart, M. J. Smart and Kizzie Smart to Houston Shankle, duly certified by the clerk of the County Court of Newton County to have been recorded January 9, 1901 in the land records of said county. The acknowledgment of the four grantors was taken by John M. Harger, the County Clerk. It referred to appellee Samantha Smart as a feme sole.

(c) Copy of deed of Samantha Smart White to H. T. Twine dated February 6, 1922, acknowledged the same day before J. W. Westbrook, Notary Public of Newton County, Texas and filed for record on July 22, 1922 and duly recorded.

All of these written instruments had been received in evidence under the statute of the State of Texas dealing with ancient documents,¹ and also under the Texas Statutes making competent, evidence of recorded instruments bearing due acknowledgment by the grantor or other person before a notary, Articles 3723 and 5956, Vernon's Texas Civil Statutes.

If the last mentioned conveyances were valid, it is undisputed that appellant had, through them and mesne conveyances, record title to the lands in controversy. But some of the deeds were challenged as forgeries under Article 3726 of Vernon's Code.²

Appellee herself filed an affidavit stating upon oath: "that she believes to be forged the instrument of writing purporting to be a deed item (a) supra, dated the 28th of February, 1902 Samantha Smart, grantor to G. W. Powell, grantee * * *" Some months later her attorney filed a similar affidavit stating that "based upon his investigation of said cause he believes that the following instruments of writing to be forged * * *" The attorney's affidavit included the instrument covered in appellee's affidavit, supra, the partition deeds and the deeds to Powell executed in 1895-1896, and other writings which the court below did not submit to the jury in its interrogatories and concerning which there was little or no proof.³

The only oral testimony touching on the genuineness of the deeds was given by the appellee herself. She testified that she "never did make no sign no deed sic." On cross examination she testified, "I never did make no deeds," and, "I said, `No, sir, I haven't sold no land no none of this land.'" Then, on redirect examination, she testified in response to the question, "Did you ever sign a deed to anybody?" "No, sir, I never signed no deed."

The only evidence touching on the appearance and acknowledgment of the execution of the deeds consisted of the following two questions and answers:

"Q. Did you ever know Mr. Homer Howard, C. H. Howard?

"A. I hear talk of him.

"Q. Did you ever know Mr. Thomas Casey?

"A. No, sir."

The Court submitted to the jury four interrogatories which, with the jury's answers, are copied in the margin;⁴ and it gave an extended oral charge to the jury explaining the various Texas statutory presumptions under which the special interrogatories were submitted.

Appellant argues seven specifications of error which, in its brief, it groups under four questions:

(1) "Did appellee establish her title to the claimed interest in controversy?"

(2) "Is there any substantial evidence that appellee\'s deeds to appellant\'s predecessors in title and to others were forged, and that appellee did not appear before the officers whose certificates are attached to such deeds?"

(3) "Is appellee bound by the deeds of her ancestors, under whom she claims, to recognize appellant\'s title to the lands in suit?"

(4) "Did appellant acquire title to the lands in suit under the five, ten and twenty-five year statutes of limitation?"

The points argued by appellant were properly preserved by objections to testimony and to the charge of the court, or by its requests that the court below submit to the jury nineteen interrogatories covering special issues, all of which were refused or rejected by the court below.

It was proper for the court below, in the exercise of its discretion, to submit the case to the jury upon special issues, if it concluded that appellee had established her case by sufficient substantial evidence, measured by proper standards, to warrant such submission. This procedure is provided by Rule 49(a), F.R. Civ.P., 28 U.S.C.A.⁵ Before discussing whether the court proceeded according to law in determining whether there was sufficient evidence to warrant submission of the issues to the jury, we point out some errors it committed in the submission which would, in our opinion, require a reversal.

We think that the court below erred in its handling of the testimony which was admitted touching possession of the lands through the years, including the payment of taxes on them. It evidently thought that, if the jury found that the instrument or instruments by which it was claimed appellee divested herself of title had been forged, title had remained in her throughout, and appellant and its predecessors in title were nothing more than joint tenants or tenants in common with appellee, so that their occupancy could not be adverse to the appellee and the undivided interest claimed by her. Even if we assume this to be true, we think it was incumbent upon the court below under Rule 49(a)⁶ to "give to the jury such explanation and instruction concerning" the evidence of possession which would have enabled the jury to consider this evidence in determining whether appellee had in fact ever, during the more than fifty years her conveyance to Powell was of record, really made or asserted any claim to title and whether her claim, so long delayed was really in good faith. Particularly is this true in connection with the special interrogatory requested by appellant under Article 5519a of Vernon's Code,⁷ which was refused by the court below.

We...