Liddell v. Gordon

• Decision Date: 11 April 1922
• Docket Number: (No. 2518.)
• Citation: 241 S.W. 750
• Parties: LIDDELL et al. v. GORDON.
• Court: Texas Court of Appeals

241 S.W. 750

LIDDELL et al. v. GORDON.

(No. 2518.)

Court of Civil Appeals of Texas. Texarkana.

April 11, 1922.

Rehearing Denied April 20, 1922.

Appeal from District Court, Lamar County; A. P. Dohoney, Judge.

Suit by Solomon Liddell and others against J. A. Gordon. From judgment for defendant, plaintiffs appeal. Affirmed.

Ownby & Allen, of Paris, for appellants.

Moore & Hardison, of Paris, for appellee.

HODGES, J.

The appellants filed this suit on April 11, 1919, against the appellee to recover an undivided half interest in a tract of 66 acres of land situated in Lamar county. The facts show that the property originally belonged to Reuben Liddell and his wife, Lucinda, and that they occupied the premises as their homestead. Reuben and Lucinda were the grandparents of the appellants. Reuben died many years before this suit was filed, and was survived by his wife and two children, Charley and Cynthia, all of whom were dead at the time this controversy arose. The appellants are the children of Charley Liddell, and claim title by inheritance to his one-half interest in the land. Cynthia left one child, George Liddell, under whom the appellee Gordon claims. Among other defenses interposed to this suit is that of limitation, based upon the 5 and 10 year statutes. In the first trial of this case the court gave a peremptory instruction for the defendant. On appeal that judgment was reversed upon the ground that the evidence presented an issue which should have been submitted to the jury. See Liddell v. Gordon (Tex. Civ. App.) 226 S. W. 459. This appeal is from a judgment against the appellants, plaintiffs below, based upon an adverse verdict of a jury.

The appellants rely on their title by inheritance from their father. In the trial below the appellee, Gordon, established the following chain of title by the records of Lamar county:

(1) A deed from Lucinda Liddell to George Liddell dated April 28, 1902, consideration being $1 and love and affection. It appears that this deed was recorded one month after the date of its execution.

(2) Deed of trust from George Liddell to Benjamin Graham as trustee for the American Freehold Land Mortgage Company, dated April 28, 1902. This deed was to secure a debt for the sum of $600, due December 1, 1907.

(3) George Liddell to F. T. Gunn, warranty deed dated March 18, 1905, consideration being $207 cash and the assumption by Gunn of the $600 incumbrance described in the deed of trust to Graham.

(4) Deed of conveyance from F. T. Gunn to George Liddell dated February 15, 1910, consideration being $200 cash and the assumption by Liddell of the $600 indebtedness previously mentioned and three notes aggregating $500.

(5) A renewal deed of trust from George Liddell to Robert G. Patton, trustee for the American Freehold Land Mortgage Company, securing the original $600 and some other indebtedness.

(6) Deed of conveyance from T. M. Scott, substitute trustee for the American Freehold Land Mortgage Company, to D. H. Scott, dated March 7, 1916, consideration, $1,400, paid.

(7) Deed of conveyance from D. H. Scott to the appellee, J. A. Gordon, on the same date, consideration, $300 paid, and five notes for $200 each.

The appellee also relied upon evidence tending to show adverse possession by George Liddell and F. T. Gunn, under whom he claims, for more than 10 years prior to the time this suit was instituted. On the trial the court, in effect, instructed the jury that appellee had proved title to an undivided three-fourths interest in the land, and submitted only the issue of limitation under the five and ten year statutes. The jury found in favor of the appellee on his plea of limitation based upon the 10-year statute, but against him on the other. The sufficiency of the evidence to support that finding is not questioned. Fourteen witnesses called by the appellee testified, in substance, as follows:

Witnesses all resided in the vicinity of the land in controversy, and knew the parties to this suit, and had known the land since the spring of 1902. Both George Liddell and the plaintiff had resided practically all of that time in the immediate vicinity of the land. With the exception of the period during which F. T. Gunn held the title, George Liddell had openly and notoriously asserted claim to the exclusive ownership of the land, and was continuously in the possession of it, cultivating, using, and enjoying it, without recognition, as far as they knew, of the right of any one else. He cultivated a part of the land himself, and frequently rented a part to others, and had always collected the rents from his tenants. Witnesses never heard of the plaintiffs asserting any right to or interest in the land or the rents. During that entire time the place was commonly and publicly known and referred to throughout the community as the George Liddell farm. George Liddell repeatedly, openly, and publicly asserted claim and ownership of the land, and on many occasions publicly offered to sell or trade it to the witnesses. Eleven of those witnesses testified that they knew Lucinda Liddell; that she died in the spring of 1907, while residing on another farm where she had been living about two years prior to her death. Frank T. Gunn, one of the witnesses above mentioned, further testified that he bought the land from George Liddell in March, 1905; that while owning it he rented to George Liddell in the same manner he rented land to other tenants, and that Liddell paid him rent each year; that he (Gunn) regularly paid taxes on the land as they accrued and before they became delinquent; that he also paid regularly to the loan company the accrued interest on the loan against the land, which had been assumed by him; that at no time during the five years did any other person assert any claim or interest in the land or the rents.

In rebuttal Simon and Solomon Liddell, two of the plaintiffs, testified substantially as follows: That George Liddell never at any time prior to the making and filing of the deed from himself to F. T. Gunn on March 18, 1905, claimed the interest of either of those parties in the land, but always recognized their interest. George Liddell told them that he was staying there and taking care of his grandmother, who died about January, 1910. George Liddell for appellants testified that he went to live with his grandparents, Reuben and Lucinda Liddell, when a boy, and continued to live with them until both of them died. After the death of Reuben Liddell George took over the management of the land in controversy and worked it for his grandmother. He never prior to 1905 claimed the plaintiffs' interest in the land. Up to that time he told them that the land was a home for them all; that he was merely staying there with his grandmother. He had had the management and control of the place for his grandmother during Gunn's ownership, the same as before. He paid all the taxes while Gunn had the deed, except one year. He lived with his grandmother until her death on January 29, 1910.

The appellants attacked by affidavit the deed from Lucinda Liddell to George as a forgery. As evidence of its execution the appellee offered the county court records for the year 1902. These showed the record of a deed from Lucinda Liddell covering the entire property to George Liddell, and that the original was taken out of the clerk's office by George Liddell on May 22, 1902. He also proved by a witness who was a deputy county clerk in 1902 that the record of the filing of deeds in the office of the county clerk for that year was regularly and properly kept, and that the entry showing the delivery of the deed from Lucinda Liddell to George Liddell was in witness' handwriting, and that witness did deliver the deed as shown by the entry. He also offered in evidence an unrecorded will executed by Lucinda Liddell, dated November 12, 1897, in which she bequeathed her entire estate to George Liddell. That instrument was offered, not as a muniment of title, but as a circumstance tending to show the execution of the deed. Appellee proved that Judge Sam C. Bryson, who appears to have taken the acknowledgment of Lucinda to the alleged forged deed, was a qualified and acting notary public of Lamar county from 1901 to 1903; that a diligent search had been made for his notarial record, but it could not be found; that Judge Bryson was a man of the highest personal integrity, whose honor was above reproach; that a diligent search had been made for the original deed, but it could not be found.

George Liddell, testifying for appellants, said that Judge Rountree, of Paris, wrote the deed from his grandmother to him, and told him (George) to take the deed to Judge Bryson and have his grandmother sign it before Judge Bryson; that he took the deed as directed, and some time thereafter his grandmother went over to Judge Bryson's house, and Judge Bryson gave him (George) the deed. He further testified:

"I didn't see my grandmother sign the deed. Never heard her say she made her mark on it. She had no opportunity to do so. After Judge Bryson gave me back the deed I brought it to Paris and got Scott & Baldwin to make me a loan on the land. I filed the deed the same day."

The witness also testified that he later went to the clerks' office and took the deed out. He supposed the deed was burned at the time the witness' house was destroyed by fire.

Upon this testimony the court admitted the alleged forged deed in evidence over the objection of the appellants. The objection then urged was that the execution of the deed had not been proved as required by the rules of common law.

The impeachment of the deed by the affidavit of forgery imposed upon the appellee the burden of proving, prima facie at least, the execution of the original before the copy could be introduced in evidence. Whether or not that prima facie proof was made was a matter for the court to determine. But the admission of the copy at that stage did not settle...