Long v. Shelton

• Decision Date: 21 March 1913
• Citation: 155 S.W. 945
• Parties: LONG v. SHELTON.
• Court: Texas Court of Appeals

Page 945

155 S.W. 945

LONG v. SHELTON.

Court of Civil Appeals of Texas. Texarkana.

March 21, 1913.

Rehearing Denied April 3, 1913.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by L. D. Long against I. W. Shelton. Judgment for defendant, and plaintiff appeals. Affirmed.

See, also, 126 S. W. 40.

Chas. S. Todd, of Texarkana, for appellant. Mahaffey, Thomas & Hughes and N. L. Dalby, all of Texarkana, and J. B. Manning, of New Boston, for appellee.

HODGES, J.

Appellant sued the appellee for the recovery of 177 acres of the Jonathan Collum survey situated in Bowie county. Appellee answered by a plea of not guilty. The principal assignment is one which complains of the action of the court in giving a peremptory instruction to find for the defendant.

It was agreed upon the trial that Francis Kirby was the common source of title. Appellant offered in evidence a deed from Francis Kirby to himself, dated February 17, 1896. This deed was not recorded until October 17, 1907, and after the institution of this suit. Appellee offered in evidence, as his chain of title from the common source, the will of Francis Kirby probated in McNairy county, Tenn., and which was filed and recorded in Bowie county, Tex., March 26, 1904. By the terms of this will Francis Kirby devised all of his land in Bowie county to his wife, Nancy Kirby. He next offered in evidence a deed from Nancy Kirby to her son James Kirby, dated December 23, 1901, and recorded in Bowie county October 26, 1903. He then offered in evidence a deed from James Kirby to himself, dated March 24, 1904, and recorded in Bowie county March 31, 1904.

It will thus be seen that appellant holds the older deed from Francis Kirby, and is entitled to recover unless the appellee, or those under whom he claims, purchased for a valuable consideration and without notice of this prior conveyance. The burden of proving the payment of a valuable consideration and the lack of notice rested upon the appellee. He depends for that proof upon the testimony of Nancy Kirby and James Kirby, both of whom testified by deposition. Nancy Kirby testified that she was the wife of Francis Kirby, and that her husband lived and died in Tennessee; that he died there in 1899 at the age of 71 years; that at the time of his death he claimed and owned the land in controversy, and willed it to her; that she conveyed the same land to her son, James Kirby, in exchange for 50 acres of land situated in McNairy county, Tenn., which she valued at $500; that at the time she made this sale and conveyance she knew nothing of any claim of the appellant to the Bowie county land. James Kirby testified that he bought the tract of land in controversy from his mother in December, 1901, and as the consideration conveyed to her 50 acres of land he then owned in Tennessee which he valued at $500; that at the time of his purchase from his mother he had no knowledge or notice of any kind that the appellant claimed to own any part of the Bowie county land, or claimed an interest in it, or that he claimed to have purchased the land from his father, Francis Kirby. This witness also resided in Tennessee. The appellee testified that he bought from James Kirby and paid $500 for the land; that at the time of his purchase he knew nothing of appellant having any claim or deed to this land. There was other testimony tending to show that appellee did have notice that appellant was claiming the land.

If James Kirby purchased from his mother without notice and paid a valuable consideration, the appellee, as his vendee, would be protected by that purchase, regardless of the fact that he knew of the appellant's adverse claim. Wallace v. Campbell, 54 Tex. 90; Hickman v. Hoffman, 11 Tex. Civ. App. 605, 33 S. W. 257; Long v. Fields, 71 S. W. 774. The question then is, Was the court authorized to assume as a matter of law that the testimony of James Kirby and that of his mother were true; or should he have submitted the issues upon which they testified to the jury?

Generally speaking, it is the province of the jury, not only to draw inferences and conclusions from the testimony of witnesses, but to pass upon their credibility as well. But when the witnesses testify by deposition and are uncontradicted, and nothing is disclosed which tends to impeach their credibility, and but one inference can be drawn from their testimony, the court may assume the truth of their statements. Thorn v. Frazer, 60 Tex. 259; King v. Worthem, 37 S. W. 1133; Henderson v. Jones, 2 Posey, Unrep. Cas. 230; Teal v. Terrell, 58 Tex. 257. In this case there is no circumstance which in the least tends to contradict the testimony of James Kirby or of his mother upon the material facts bearing upon the main issue to be here considered. The fact that James Kirby resided in Tennessee, several hundred miles from the land and from the claimant, is a circumstance strongly in his favor as to the absence of any knowledge or notice of appellant's adverse claim. While Kirby was a warrantor to the appellee, and to this extent may be considered as interested in the result of this litigation, he was also a warrantee of his mother, and was protected by that warranty against an ultimate loss.

There is no probability that a jury would have determined the question of notice differently had it been submitted to them, and for that reason alone we do not feel disposed to reverse this judgment because of the refusal to submit that issue. Rule 62a (149 S. W. x). If we are correct in this conclusion, it follows that Shelton has shown the better title under the common source, and is entitled to recover.

But appellant contends that he has shown a superior title to a two-fifths undivided interest in the land from the sovereignty of the soil, independent of the deed from Francis Kirby. The record contains this agreement, appearing as a part of the evidence coming from the appellant: "It was agreed that plaintiff and defendant both claim under Francis Kirby as common source of title." It has been expressly held in this state that, where the parties have agreed as to the common source, they cannot impeach the validity of the title in the common source. Swearingen v. Reed, 2 Tex. Civ. App. 364, 21 S. W. 383; Wallace v. Berry, 83 Tex. 330, 18 S. W. 595; Crabtree v. Whiteselle, 65 Tex. 111; Skov v. Coffin, 137 S. W. 450; Evans v. Foster, 79 Tex. 50, 15 S. W. 170. In the last case cited the court, in disposing of an objection to a charge which instructed the jury that certain title papers back of the common source were sufficient to establish plaintiff's title, said: "This assignment cannot be sustained, for the reason that the defendant filed an abstract of his title under the statute, in which he stated that he claimed under M. J. Brinson as common source. M. J. Brinson having acquired title through the transfer of the certificate by Rachel Milliken to Leonard, the defendant could not question the validity of that or any other link in the chain of title between the sovereignty of the soil and the admitted common source. Pearson v. Flanagan, 52 Tex. 279; Glover v. Thomas, 75 Tex. 507, 12 S. W. 684." The other cases referred to are more specific upon the proposition above stated. Counsel for appellant seeks to evade the force of that rule by insisting that the agreement copied above applied only to three-fifths of the land in controversy. The agreement is in the language quoted, and it is not otherwise contended that it was in any way modified or restricted in its meaning or application. The title to all of the land is involved in this suit. The petition was in the usual form of trespass to try title, while the answer consisted of a general demurrer and a plea of not guilty. We must therefore assume that, when the parties made this agreement, it was intended to cover all that was put in issue by the pleadings. The effect of this agreement was to affirm that Francis Kirby held the title, and to relieve both parties from the necessity of connecting themselves with the title prior to the common source. Glover v. Thomas, 75 Tex. 507, 12 S. W. 684. It was as binding upon the plaintiff as upon the defendant.

When the common source has been shown in the usual manner by the introduction of deeds or other muniments of title, the defendant is not permitted to defeat the plaintiff's right to recover by merely showing an outstanding title anterior to the common source. He must go further, and show that the common source in fact has no title. Cocke v. T. & N. O. Ry. Co., 46 Tex. Civ. App. 363, 103 S. W. 407; Rice v. Railway Co. et al., 87 Tex. 90, 26 S. W. 1047, 47 Am. St. Rep....