Massie v. Hutcheson

• Decision Date: 27 April 1927
• Docket Number: (No. 2736.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 296 S.W. 939
• Parties: MASSIE v. HUTCHESON et al.
• Court: Texas Court of Appeals

Page 939

296 S.W. 939

MASSIE v. HUTCHESON et al.

(No. 2736.)^*

Court of Civil Appeals of Texas. Amarillo.

April 27, 1927.

Rehearing Denied June 15, 1927.

Appeal from District Court, Floyd County; G. E. Hamilton, Special Judge.

Trespass to try title by Rachel L. Hutcheson and others against W. M. Massie. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

I. W. Stephens, of Fort Worth, Kenneth Bain, of Floydada, and Kinder & Russell, of Plainview, for appellant.

T. P. Adams, of Wichita Falls, and P. B. Randolph and Williams & Martin, all of Plainview, for appellees.

JACKSON, J.

The appellees, on January 3, 1910, filed this suit in trespass to try title in the district court of Floyd county, Tex., against the appellant, to recover title and possession to survey 109, block 1, in said Floyd county, Tex.

The appellant answered by general denial, plea of not guilty, and the 3, 5, and 10 year statutes of limitation.

The case has been before this court on former appeals and is reported in volumes 159 S. W. 315, 226 S. W. 695, 258 S. W. 244. It has also been before the Supreme Court on writ of error, and is reported in volumes 110 Tex. 558, 222 S. W. 962, and (Tex. Com. App.) 270 S. W. 544.

Appellees base their claim on a patent dated February 19, 1877, issued by the state of Texas to H. A. and J. L. Cagle, assignees of Adams, Beatey, and Moulton, to survey 109, block 1, land script No. 468; a power of attorney from J. L. Cagle, dated October 16, 1876, to H. A. Cagle, authorizing him to convey the interest of J. L. Cagle in certificates Nos. 468, 469, 470, 471, and 480, all issued to Adams, Beatey, and Moulton, and transferred to the said H. A. and J. L. Cagle; a deed dated May 8, 1877, from H. A. and J. L. Cagle to Joseph Jones and W. I. Garshweiler to survey 109, land script 468, survey 111, land script 469, survey 113, land script 470, survey 115, land script 471, and survey 117, land script 480, for $900 cash, all in block 1, Floyd county, Tex.; a deed, dated May 12, 1877, from W. I. Garshweiler, conveying his interest in said surveys 109 and 117 to Joseph Jones. The appellees also introduced proof showing that they were the heirs of Joseph Jones, who died February 23, 1902, at San Antonio, Tex., and of his wife, Annie E. Jones, who died June 19, 1903.

Appellant relies on secondary evidence to prove the execution of a deed, its contents and its loss, made by Joseph Jones on January 14, 1878, and acknowledged by his wife on January 28, 1878, to C. W. Haxton, from the heirs of whom he has a conveyance to said land which was in evidence. He offered the patent, power of attorney, and deeds that had been introduced by the appellees. He also offered a deed from Joseph Jones, dated May 12, 1877, acknowledged before a notary public of Dallas county, Tex., and filed for record in Jack county, Tex., July 20, 1877, conveying his interest to W. I. Garshweiler in said surveys Nos. 111 and 113 for a recited consideration of $400; a deed from Joseph Jones and W. I. Garshweiler, dated May 5, 1877, acknowledged before a notary public of Dallas county, Tex., and recorded in Jack county, Tex., July 6, 1877, conveying said survey 115 to John Weir for a consideration of $200; a deed from Joseph Jones and his wife, dated January 17, 1878, acknowledged before a notary public of Dallas county, Tex., recorded in Jack county, Tex., January 18, 1878, conveying said survey 117 to Y. B. Dean for a consideration of $140.

It was agreed that with the exception of said deed from Jones and his wife to Dean, all other deeds made by Garshweiler and Jones affecting the five above tracts of land were made and recorded in 1877; that the indices to the deed records of Floyd county, including the indices to the transcribed deed records from Jack county, show no other transfers from Joseph Jones and his wife to any land in Floyd county, and that the records of Floyd county show no transfer to Joseph Jones and his wife to any land in Floyd county, except the lands shown in the aforesaid instruments which left undisposed of in January, 1878, as far as the records reveal, survey 109, which is the land in controversy.

Appellant introduced a certified copy of an entry in the notarial record kept by Julius Royer, a notary public of Dallas county, Tex., covering the period from July 28, 1876, to March 31, 1878, which tends to show that Joseph Jones, on January 14, 1878, and Annie E. Jones, on January 28, 1878, both in Dallas county, Tex., acknowledged as grantors an instrument in which C. W. Haxton, of Attica, Ind., was the grantee, relative to land located in Floyd county, Tex., the original grantee being given as H. A. and J. L. King.

The record tends to show that up to 1879 no land in Floyd county, and none in the state of Texas, had been patented to H. A. and J. L. King, and that there had been no survey in which they were named as original grantees; that there had been no one who was patentee or original grantee in any grant from the state with the initials of H. A. and J. L. except H. A. and J. L. Cagle, and that they were patentees to land in Floyd county, Tex.

The record tends to show that Dr. Jones moved from Indiana to Dallas, Tex., about 1875; that C. W. Haxton, who had theretofore worked for Dr. Jones as stableman in Attica, Ind., was employed to bring to Texas some horses and personal property for Dr. Jones; that after arriving in Texas he worked for Dr. Jones in Dallas a year or two, then returned to Attica, Ind., his old home; that after he returned he claimed to own a section of land in Texas, which he asserted he had bought from and which had been deeded to him by Dr. Jones; that he continuously, from time to time, and to different people, up to his death on November 24, 1902, claimed to own a section of land in Floyd county, Tex.; that he exhibited on different occasions and to different people an instrument which was in the ordinary form of a deed, and which he stated was the deed given to him by Dr. Jones for the Texas lands; that he said the land was of but little value, but he expected it to be worth more later; that he tried to trade the land for other property, and offered to give his daughter and son-in-law a home on the land, if they, with their family, would move to Texas and occupy it.

Louis A. Layman, the surviving husband of the deceased daughter of C. W. Haxton, testified to hearing his father-in-law claim the land in Texas and announce that it was deeded to him by Dr. Jones, and that he and his wife and C. W. Haxton had discussed the land and the deed many times, and that C. W. Haxton claimed to own but one tract of land in Floyd county, Tex.; that he, witness, had read the deed on two different occasions, and that it was from Joseph Jones and his wife to C. W. Haxton for a section of land in Floyd county, Tex.

Mrs. Keller, the granddaughter of C. W. Haxton, testified that in 1901 her grandfather showed her an old deed, worn and frayed in the creases, all of which she could not read as it had faded out in the folds, but that she could see that it was a deed, could read the name of Jones and "Dallas, Tex.," and it read that the land was deeded to C. W. Haxton.

The testimony of a number of witnesses who were closely associated with Dr. Jones during the 20 years he resided in San Antonio immediately preceding his death, February 23, 1902, tends to show that he never asserted any claim to any land in west Texas; in the will executed by Dr. Jones on January 28, 1902, no mention is made of the land, nor is any reference to it made in the inventory and appraisement in the probate of Dr. Jones' will; there was nothing found among the papers of Dr. Jones with reference to the land; no taxes were ever paid on it by him or his heirs or executor, and neither his heirs nor his executor ever made any claim thereto until just prior to the institution of this suit when it was called to their attention in an advertisement by a stranger.

On the loss and destruction of the deed, the testimony by appellant tends to show that January 27, 1902, C. W. Haxton was living up stairs in a room in a building adjoining the post office in Williamport, Ind., at which time a fire occurred, destroying the building and room in which Haxton lived and slept; that he had his papers and personal belongings in the room; that he was present at the fire and was rescued from the building nearly exhausted and stated immediately thereafter that all of his personal effects were destroyed.

The appellee introduced the testimony of Jerry Haxton, the half-brother of C. W. Haxton, who stated that three or four years before C. W. Haxton died he saw the deed to the Texas property at the place where he and his brother were living, on which occasion C. W. Haxton had a number of papers in his hand and said he was going to burn all the papers that he had; that three or four days thereafter witness asked what had been done with the deed to the Texas property, and C. W. Haxton answered, "Ashes tell no story."

The record discloses that sufficient search to find the deed, if it ever existed, had been made in the proper and probable places to admit secondary evidence of its loss, provided its loss or destruction was unintentional or accidental and not prompted by any fraudulent intent or design.

Floyd county was unorganized until 1890 and was very sparsely settled at that time. Neither C. W. Haxton nor his heirs ever occupied or paid taxes on the land.

We deem this a sufficient statement for a consideration of the questions presented and to disclose the additional testimony offered on the last trial.

At the conclusion of the testimony, the jury, in response to a peremptory instruction by the court, returned a verdict that the appellees recover title and possession to the land in controversy, and judgment was entered accordingly.

Appellant, by proper assignments, challenges as error the action of the trial court in directing a verdict against...