Martinez v. Bruni

• Decision Date: 21 December 1921
• Docket Number: (No. 251-3454.)
• Citation: 235 S.W. 549
• Parties: MARTINEZ v. BRUNI et al.
• Court: Texas Supreme Court

235 S.W. 549

MARTINEZ v. BRUNI et al.

(No. 251-3454.)

Commission of Appeals of Texas, Section A.

December 21, 1921.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Trespass to try title by Francisco Martinez against A. M. Bruni, M. D. Slator, and others. A judgment awarding plaintiff a small part only of the land claimed by him was affirmed by the Court of Civil Appeals (216 S. W. 655), and plaintiff brings error. Affirmed as to defendant Slator, and reversed and remanded as to the other defendants who claimed interests adverse to plaintiff.

H. G. Dickinson, of Laredo, for plaintiff in error.

T. C. Mann and A. Winslow, both of Laredo, Hicks, Phelps, Dickson & Bobbitt, of San Antonio, Hal W. Greer, of Beaumont, and A. C. Hamilton, of Laredo, for defendants in error.

SPENCER, P. J.

Plaintiff in error, Francisco Martinez, instituted this suit in the ordinary form of trespass to try title, naming A. M. Bruni, M. D. Slator, Henry Hein, Antonio Martinez, Jose Maria Martinez, Epigmenio Martinez, Jesus Martinez, Processo Martinez, A. M. Gonzales, Jose Maria Uribe, Margarilo Uribe, Manuel Maria Uribe and Dolores Perez as defendants to recover an undivided interest in the Dolores and Corralitas portions of the Jose Vasquez Borrego grant of land. The Borrego grant contains approximately 234,457 acres but it is agreed that only 129,779 acres, or the two portions mentioned, are affected by the suit. The suit was dismissed as to Antonio Martinez, Jose Martinez; Epigmenio Martinez, A. M. Gonzales and Manuel Maria Uribe.

The defendants in error, except Henry Hein, pleaded not guilty. A. M. Bruni also pleaded the 5 and 10 year statutes of limitation to the land claimed by him, which is described by metes and bounds in his answer; Slator pleaded the 5 and 10 year statutes of limitation to the land described in his answer; Dolores Perez pleaded the 5 and 10 year statutes of limitation; and Henry Hein pleaded specially title to an undivided interest to the extent of 1,600 acres in the tract of land.

Upon special findings of the jury and additional findings by the court, judgment was rendered against plaintiff in error upon his prayer for an undivided interest in the land, but, upon his plea of title by limitation, judgment was rendered in his favor for 160 acres of the land. The judgment upon appeal was affirmed. 216 S. W. 655. Writ of error was sued out to correct the judgment of the Court of Civil Appeals, as to defendants in error Bruni Slator, Dolores Perez and Henry Hein.

Plaintiff in error introduced a regular chain of title from the sovereignty of the soil, down to and in Hipolito de la Pena, who owned a two-fifths interest in the grant by purchase, and Alejandro Vidaurri, who owned by purchase and inheritance a three-fifths interest in the grant.

Alejandro Vidaurri had eight children, but there is no divestiture of title out of any of them except Antonia, who intermarried with Hipolito de la Pena, and Lauriano, a son, who died survived by his wife and nine children. Antonia was entitled by inheritance to at least a three-fortieths interest in the grant, as were the heirs of Lauriano.

Antonia and Hipolito left surviving them two children, Maria Clara de Jesus Pena Vidaurri and Antonio Pena. Antonio Pena Vidaurri, by deed dated September 7, 1889, conveyed a one-half interest in the Borrego grant, except 4,428 acres which he had sold to Alejandro Vidaurri, to his son, Lorenza Pena, and the latter deeded this land to plaintiff in error by deed, dated April 22, A. D. 1905. Bruni, however, introduced a deed from Antonio Pena Vidaurri dated the 16th day of September, 1887, conveying all his title and interest in the grant to Bruni.

By deed dated June 8, 1887, Maria Clara de Jesus Pena Vidaurri conveyed to Bruni one league of land in the Borrego grant. She died in Mexico leaving a will dated July 8, 1884, which was probated in Texas in 1889, in which she devised her interest in the Borrego grant to Maria del Refugio Pena and the latter's son, Victor Pena. Victor Pena purchased his mother's interest, and then, by deed dated June 1, 1899, conveyed his undivided interest to plaintiff in error.

The principal controversy in this case is who is entitled to the interest of Maria Clara de Jesus Pena Vidaurri in the grant?

Defendant in error Bruni offered in evidence deeds from the heirs of Lauriano Vidaurri conveying all their right and title in the grant to himself. It is his contention that, prior to 1880, and before the heirs of Lauriano deeded their interest in the grant to him, Maria Clara de Jesus Pena Vidaurri conveyed all her interest in the grant, except one league to Lauriano Vidaurri, and that the conveyance from the latter's heirs to him carried this interest. Alleging that the deed of conveyance was lost, he sought to establish its execution, delivery, and subsequent loss by Trinidad Cuella de Vidaurri, wife of Lauriano Vidaurri. The testimony tending to establish the deed consisted in part of depositions taken in another suit in which plaintiff in error had sued Bruni and others in trespass to try title to the same land, but which had been dismissed. Plaintiff in error objected, but to no avail, to the introduction of the depositions in evidence because they were taken in another and different suit.

The honorable Court of Civil Appeals correctly held that depositions are admissible under article 3677 (2290) (2236) of the Revised Civil Statutes of 1911, only in the case in which they were taken, and not in another case, though between the same parties and involving the same issues. People's National Bank v. J. S. Mulkey et al., 94 Tex. 395, 60 S. W. 753.

The Court of Civil Appeals held, however, that, as the execution of the deed from Clara de Jesus Pena Vidaurri to Lauriano Vidaurri, independently of the depositions, was established by the testimony of about six uncontradicted witnesses, and that, as the possession and limitation was established without reference to the deposition, the error became harmless. We do not agree to this conclusion. The appearance of the deposition in evidence indicates that the defendant in error Bruni was not willing to rest his defense without this testimony, whatever may have been his view of the force of the testimony of the other witnesses upon this issue; and, as it does not appear that the illegal testimony did not influence or was disregarded by the jury in arriving at its verdict, it cannot be said that the error was harmless unless Bruni has perfected title to the land by limitation. If he is unable to...