Lindsay v. Jaffray

• Decision Date: 21 November 1881
• Docket Number: Case No. 4236.
• Citation: 55 Tex. 626
• Parties: J. M. LINDSAY v. E. S. JAFFRAY ET AL.
• Court: Texas Supreme Court

55 Tex. 626

J. M. LINDSAY

v.E. S. JAFFRAY ET AL.

Case No. 4236.

Supreme Court of Texas.

Nov. 21, 1881.

APPEAL from Cooke. Tried below before H. E. Eldridge, special judge.

Suit in trespass to try title brought in the district court of Cooke county, April 9, 1879, by the appellees against appellant. In their petition, appellees alleged that they were the joint owners of an undivided interest of nine hundred acres out of two surveys in the name of William Moore in Cooke county, the first containing one thousand one hundred and thirty-five acres and the other two hundred and six acres, and that appellant owned the remainder of surveys, but had ousted appellees therefrom, etc. Appellant answered by pleas of not guilty and limitation of five years. The suit was tried by the court without a jury, and judgment rendered in favor of appellees for an undivided interest of six hundred and forty-one acres out of the surveys, and commissioners appointed to partition the land by allotting six hundred and forty-one acres of the same to appellees and the balance to appellant. From this judgment appellant appealed. A statement of facts was filed, and in addition to this the judge, in accordance with the statute, stated the conclusions of law and fact found by him, and these were excepted to by appellant, and complained of in a motion for a new trial.

The appellant relied upon the second, third, fourth, fifth, sixth, ninth and tenth grounds specified in the assignment of errors.

The plaintiffs claimed title under sale and deed, made to them by the administrator of the estate of C. A. Bulkley on the 4th day of January, 1870. The defendant purchased the same land, at a like administrator's sale, under order of the same probate court, as the property of the same estate, at a subsequent period, viz., in December, 1871. The plaintiff introduced the evidence of the defendant's purchase in connection with his own evidence of title, in order to establish the fact that their titles, respectively, were derived from the same common source. The defendant introduced record evidence of the probate court of Grimes county, showing regular proceedings of the sale to him, and an order confirming it, and admitted his possession of the land in dispute.

It was proved that the land was patented to William Moore on the 26th day of February, 1872 (who died in the year 1842), by virtue of a duplicate certificate, unlocated balance of said Moore's headright certificate. Mrs. Morse and Mrs. Rudd are his daughters and only heirs; they conveyed by quit-claim deeds the land in controversy to the defendant, after the institution of this suit and before the filing of the answer. The court, in its finding upon the facts, determined from the evidence that the heirs sold in the year 1859 the certificate by virtue of which the land was patented, through their agent, Shackleford; that C. A. Bulkley in his life-time derived title to the land under a conveyance to him by deed from E. Terry, dated 9th of March, 1863; that he had owned the certificate under which the land was located and surveyed, by a chain of transfers thereof, as follows: from C. A. Bulkley to Lewis Moody; from Moody to Ephraim Terry; which transfers were made sometime during the years 1857 to 1860. Terry conveyed the land to Bulkley in 1863. The court found that “the evidence was not sufficient to prove the original transfer of the certificate from the heirs of William Moore to Bulkley.”

The plaintiffs (appellees), as has been stated, acquired their title by purchase in 1870 at a sale ordered by the probate court of Grimes county in the matter of the estate of C. A. Bulkley. The order of sale directed the sale of about sixty thousand acres of land situated in different counties, among which certain land was described as follows:

“FANNIN COUNTY, TEXAS.

Nine hundred acres of land, deed of E. Terry for about one thousand six hundred acres, except seven hundred acres for locating, leaving as above nine hundred acres. Deed dated March 9, 1863, recorded May 21, 1863.”

In the report of sale the lands were described in the same way, and were expressly stated to be in Fannin county. In the decree of confirmation the lands were not described, except by reference to the report of the sale. In the administrator's deed, however, the land was described as being in Cooke county, but the deed was not filed for registration in Cooke county till the 3d day of February, 1875. Afterwards, in the year 1871, the district court of Grimes county, in the matter of the estate of Bulkley, ordered the sale of certain lands as the property of that estate, including the lands in dispute, and at the sale made under this order, which took place on the first Tuesday in December 1871, appellant became the purchaser, at an average price of about seventeen cents per acre. This sale was confirmed, and on the 5th day of March, 1872, the administrator, upon the payment of the purchase money, executed to appellant a deed in due form. Appellant proved, and the court so found, that at the time he bought and paid for the land in dispute, he did not know that the same had been previously sold, or that appellees had any claim thereto. The court further held that the land sold to appellees, and the land afterwards sold to appellant, was the same, and gave judgment in favor of appellees.

The land is situated, not in Fannin county, Texas, but in Cooke county, Texas.

The other facts, so far as they need to be stated, are given in the opinion.

The errors assigned mainly involve the question whether the court erred in rendering the judgment for the plaintiffs upon the facts as found.

W. O. Davis, for appellant.

I. By virtue of the quit-claim deeds from Mrs. Morse and Mrs. Rudd, appellant acquired at least the legal title to the land in dispute, which gave him the right to hold the same as against every one except the equitable or real owner. Shields v. Hunt, 45 Tex., 427;Fitch v. Boyer, 51 Tex., 348.

II. Appellant having proved a regular chain of title from William Moore, the grantee of the land in dispute, down to himself, the burden was upon appellees to prove either an older legal title or that they were the equitable owners. Shields v. Hunt, 45 Tex., 427;Fitch v. Boyer, 51 Tex., 348;Keys v. Mason, 44 Tex., 143.

III. There was no proof that appellees were partners at the date of the deed, or at the date of the suit or at any other time. R. S., arts. 4786, 4792; Blair v. Cisneros, 10 Tex., 40.

IV. The court erred in not holding the sale to E. S. Jaffray & Co. void for uncertainty and error in description of the land attempted to be sold. Wofford v. McKinna, 23 Tex., 44;Norris v. Hunt, 51 Tex., 612; Rorer on Jud. Sales, secs. 500, 883; Freeman on Executions, secs. 281, 330.

V. The court erred in directing partition of the land.

C. C. & C. L. Potter, for appellee.

WALKER, P. J. COM. APP.

The questions presented under the assignment of errors which relate to the merits of the titles under which the plaintiffs and the defendant respectively claim, involve a comparison of that one which was acquired by the plaintiffs at the administrator's sale which was first made, with each of the two separate and distinct titles under which the defendant claims; one of which is derived from the heirs of the original grantee from the government, and the other is from the administrator of the same estate under which the plaintiff claims, by virtue of a sale subsequently made.

If the defendant can successfully maintain that the title he derived from the heirs is a valid conveyance of the rights vested in them to the certificate by inheritance, and that when they conveyed to him they were, at that time, still the owners of said interest, he would have established, at least prima facie, a perfect title in himself from the sovereignty of the soil, through a consecutive chain of title; it would be superior to any which could be derived from Bulkley's administrator.

The court found on the facts that the transfers of the certificate, made between the years 1857 and 1860, taken in connection with the entire testimony which related to the subject, was not sufficient to establish the existence of a transfer of the certificate made by the heirs of William Moore to C. A. Bulkley. From which finding it follows that the better title may possibly have been outstanding in the heirs from whom defendant claims under their quit-claim deeds, unless they or their ancestor had sold the certificate before they made said deeds to the defendant.

If, however, they had, prior to that time, conveyed or transferred it to another, the defendant could have derived no title under their quit-claim deeds to lands in which they had no interest. The conclusion of law by the court, upon the evidence which was before him, was as follows: “No title passed to the defendant, J. M. Lindsay, to the land in controversy by virtue of the quitclaim deeds from Mrs. Morse and husband, and Mrs. Rudd and husband to defendant, because they had no title to convey to him, having sold their interest in the certificate in 1859, by virtue of which said land was located.”

Although the judge who tried the case found upon the facts that there was no sufficient evidence to prove a transfer of the certificate from the original grantee or his heirs to Bulkley, he distinctly found, nevertheless, that those heirs did, in the year 1859, sell the land certificate, through their agent, John Shackleford, to some person who is unknown to them. The heirs referred to were witnesses, and testified to that fact explicitly. Their conveyance by quit-claim deeds to the defendant was made in the year 1879-- twenty years subsequently. They were introduced by the defendant as witnesses in his behalf. There was testimony tending to corroborate theirs. Terry testified directly, indeed, that when he bought the certificate it was accompanied by a written transfer from C. A. Bulkley to Moody, and by one from Wm. Moore or his...