Lee v. Wharton

• Decision Date: 01 January 1853
• Citation: 11 Tex. 61
• Parties: LEE v. WHARTON.
• Court: Texas Supreme Court

11 Tex. 61

LEE

v.WHARTON.

Supreme Court of Texas.

1853.

Written admissions of attorneys, made to obviate the necessity of introducing testimony, are binding on their principals (in the absence of fraud or mistake); and where they are intended to be used only for a particular trial or Term of the Court, it ought so to be expressed in the writing; or if any doubt exists as to the construction which ought to be given to the agreement, then it would be manifestly proper that the party intending to resist the admission, on a subsequent trial, should give the adverse party notice to that effect. (SPECIAL COURT.)

Before the Act of 1846, the statute did not expressly require that every paper, filed in a cause, should be marked “filed,” with the date of filing and the signature of the Clerk indorsed on it; and it was the custom to mark each paper with the file number of the suit and also a number of its own, by which the loss or absence of any paper might be ascertained by the absence of its number from the papers of the case; and it is believed to have been the uniform practice of the Courts heretofore, and we think reasonable and fair, to regard every paper, found among the papers of a case, originating prior to 1846, with the file number of the suit indorsed upon it, as properly filed, unless a suspicion is cast upon it, as by the party objecting to it. (SPECIAL COURT.)

Where an action of trespass to try title had been instituted by Wharton v. Lee in 1839, tried in 1843, and came on again for trial in 1852, the Court permitted the following paper, signed by the attorneys in the case, marked No. 4, and having the file No. 39 (the number of the case), to be read in evidence, in connection with a part of the statement of facts made upon the former trial, which was offered to identify it:

“The concession to Brown under which we both claim.

The conveyance from Groce to Wm. H. Wharton.

That the plaintiffs are his heirs, and that the defendant was in possession when sued.

GILLESPIE,

CROSBY.”

And the Court construed it to be a binding agreement of counsel to waive proof of the facts recited, especially in the absence of notice that its effect as such would be resisted at the subsequent trial. (SPECIAL COURT.)

A public act of sale, purporting to have been executed at Matamoros in April, 1828, before a notary of that place, with the customary forms and solemnities, and which appeared, by Stephen F. Austin's indorsement thereon, to have been received and filed among the archives of the municipality of Austin, where the land was situated, was held to be inadmissible without further proof of its execution, when offered in evidence, in 1852, by a party who was in possession claiming under it. The suit, however, was brought in 1839. (SPECIAL COURT.)

Where a defendant in trespass to try title, claims by prior purchase unrecorded, the purchase must be duly proved, before testimony that the subsequent purchaser had notice, is admissible. (SPECIAL COURT.)

A stranger cannot raise objections in a Sheriff's sale, which might have been obviated by the consent or acquiescence of the judgment debtor. (SPECIAL COURT.)

The Alcalde is the proper officer, under the Civil Law, to execute the deed to a purchaser at an execution sale. The Judge may, if he chooses, execute his own sentence; and when he does so, he may proceed without a written execution--but he is, under all circumstances, the proper person to make title to the purchaser. (SPECIAL COURT.)

See this case, as to what is said respecting a code of provisional regulations, which was framed by Stephen F. Austin for his colony, and approved by the Governor of Texas; and respecting rights adjudicated under it. (SPECIAL COURT.)

The deed of an Alcalde of the municipality of Austin, which recited (but not at full length), all the previous proceedings, resulting in a judgment, execution, sale and act of possession, was, of itself, full evidence of title, at the time of its execution; we require now, proof of its execution, according to the present laws of evidence; but, its execution once proven, the instrument itself becomes full proof of everything of which it was the evidence, at the time of its execution. (SPECIAL COURT.) (Note 13.)

Appeal from Travis. At the April Term, 1843, a trial was had, and verdict and judgment rendered for the defendant, Lee, from which the plaintiffs appealed to the Supreme Court. At the _____ Term, 184-, of the Supreme Court, the judgment was reversed by consent of parties, and the cause remanded for a new trial. The trial and judgment from which this appeal was taken, were had in 1852. The admissions of counsel, upon which points were made, appeared to have been made on the eve of the former trial. The fifth interrogatory to Oliver Jones, and which was excluded, was, “State, if you can, if said property was appraised according to law?” The part of Jones' testimony, which was excluded, was, that he was in the habit of having real property appraised, previous to sale, where the title was not doubtful, and where it was so appraised and did not fetch two-thirds of its appraised value, there was no sale; that his impression was that the land in question was not so appraised, because he had understood and believed that the same had been previously sold by Brown in Matamoros; and that when he sold the land, he informed the company present of his belief of such sale by Brown. The judgment was prior to the deed to Cutter. The other facts will be found in the opinion of the Court.

Special Court composed of WILLIAM E. JONES and ROBERT HUGHES, Special Judges.

Webb & Oldham, for appellant. I. But if we admit that the Alcalde was the proper person to execute the deed, then we insist that its execution was not a judicial, but a mere ministerial act. A judicial act is one which implies an exercise of judgment. A ministerial one, is such as an officer is bound to perform in the discharge of his official duty, whether his judgment approves it, or not. Now, if Groce was entitled to the land by virtue of his purchase at the Constable's sale, the officer who was charged by law with the execution of the title, was bound to execute it to him, and whether that officer was Alcalde, or Constable, he had no judgment to exercise in the matter. It was an act defined by the law, and the performance of which the law demanded. If then, the execution of the deed to Groce was a ministerial act, the recitals of that deed, beyond the mere facts of the sale of the property, its purchase, and the payment of the purchase money, must go for nothing. They cannot be received to establish other facts, dependent upon other and higher grades of evidence.

It is laid down in a great number of authorities, and it may be said that it is not seriously controverted in any, that “where a purchaser through sale under a judgment and execution, sues as such to recover the property purchased, he must produce the judgment and execution, for they are parts of his title; and this is so whether the property be real or personal.” (Cowen & Hill's Notes, 2d pt., p. 1079, 1081; 12 Wend. R., 74, 75, 76; 16 Wend. R., 563; 4 Wash. C. C. R., 624, 625; 12 Johns. R., 213; Taylor's N. C. R., 107; 2 Stark. R., 199; 7 Johns. R., 535; 1 Bing. R., 209.)

II. The next paper offered in evidence by the plaintiffs, and admitted by the Court, against the objections of the defendant, was one which, of itself, had nothing to characterize it, or define its object. It was a mere loose scrap, found among the papers of the cause, without carrying with it any evidence of how it got there. It was not entitled as belonging to the case, nor did it appear to have been filed as a paper pertaining to it. It only stated upon its face, these few simple and almost unmeaning words: “The concession to Brown, under which we both claim; the deed from Groce to W. H. Wharton; that the plaintiffs are his heirs, and that the defendant was in possession when sued. Gillespie, Crosby.” Now the most that could reasonably have been claimed for a paper like this was that it was a mere memorandum, made for some purpose or other, but what, or when made, none, except those who made it, could have told. To get it in as evidence in the cause, however, another manifest error was, we think, committed by the Judge. He allowed the plaintiffs to read so much of another paper, called a statement of the facts, which occurred at the former trial in Washington county, in 1843, as was supposed to relate to the matters contained in this; and the two together were received as evidence to establish facts, without which, the plaintiffs could not recover.

The rulings of the Court, in this portion of the case, were so manifestly erroneous, that an argument to show them to have been so, is almost superfluous. The paper, and the statement of the facts, called in to support it, were, no doubt, offered with a view to show that the land had been conveyed by Groce to W. H. Wharton, and that the plaintiffs were the heirs of Wharton; but they were wholly incompetent to establish either, even had their admission not been so strange a departure from the well-known and long-established rules of evidence.

In the first place, the paper itself contained not a single feature or semblance of a document, which entitled it to be received as evidence in any other case, without explanation; and the Court seems to have been so well aware of this, that it permitted another paper, equally objectionable, to be read for the purpose of affording that explanation. A statement of what took place at a former trial of the cause, may not have exhibited the real merits, or anything like the real merits of the case; and for this reason, new trials are most frequently granted; but in no event, could such a statement be used on a new trial, except as very inferior sort of secondary evidence. If Wharton had a deed from Groce for the land, that deed should have been produced in support of the claim, or...