Masterson v. Harrington

• Decision Date: 07 March 1912
• Citation: 145 S.W. 626
• Parties: MASTERSON v. HARRINGTON et al.
• Court: Texas Court of Appeals

145 S.W. 626

MASTERSON v. HARRINGTON et al.

Court of Civil Appeals of Texas. El Paso.

March 7, 1912.

Rehearing Denied March 27, 1912.

Appeal from District Court, Harris County.

Trespass to try title by H. Masterson against Sarah Harrington and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Rowe & Doughty, Masterson, Atkinson & Masterson, J. O. Davis, and Anselm H. Jayne, for appellant. Tharp & Whitehead, for appellees.

HIGGINS, J.

Appellant filed suit in the district court of Harris county against appellees in trespass to try title, seeking to recover certain land out of the Victor Blanco five-league grant in said county.

In 1835 title to three leagues in the lower part of the Victor Blanco grant was vested in Lorenzo De Zavalla, Jr.; the premises in controversy herein being a part thereof. Appellant claims title by regular chain from De Zavalla, and defendants claim title under numerous duly recorded conveyances originally emanating from Emily Hand. Appellees contend that the premises in controversy were, in fact, conveyed by De Zavalla to Emily Hand by deed conveying 2,000 acres of land. There is no direct evidence of such a deed; but appellees rely upon facts and circumstances to evidence the presumption that such a conveyance was, in fact, executed.

The case was tried before a jury, and the sole question submitted to the jury for their determination was whether or not, from all the facts and circumstances in evidence, there was at some time such a deed executed by De Zavalla to Emily Hand, which issue the jury answered by stating, "We find that there was a deed made to 2,000 acres of the Victor Blanco grant by Lorenzo De Zavalla, Jr., to Emily Hand," upon which verdict judgment was accordingly rendered by the court in favor of appellees.

The gist of the various propositions urged by appellant under the first assignment of error is that the evidence was insufficient to warrant the court in submitting such an issue to the jury, and that the evidence is insufficient to support the jury's finding that there was such a deed.

In 1850 George Young, under whom the appellees claim, bargained with Emily Hand and her husband for the 2,000 acres of land, which, it is contended, was conveyed by De Zavalla to Emily Hand by lost deed. Young placed a loghouse thereon and a man in possession thereof, who held possession until 1852, when the Young family moved upon the land, and on January 15, 1854, Emily Hand and husband conveyed the same to Young by deed, which was duly recorded. Geo. Young and his wife cultivated and improved the land and lived thereon until his death in 1862, and thereafter the surviving wife resided upon the land with her children until she died in 1872, cultivating part thereof. The family burying ground of the Young family was upon the land, and Young and his wife were both buried thereon, together with a number of his children and other descendants. In 1865 the land was partitioned, the surviving wife, Lucy Young, receiving the southern portion, and the remainder was divided into eight parts and awarded to the eight heirs of George Young. Some of the heirs had settled upon portions of the land prior to the partition, to wit, Amanda Harrington, Harriet McDonald, and Ann Rankin. Amanda Harrington died, and her surviving husband, James Harrington, married another one of the Young heirs, and they resided upon and cultivated portions of the land owned by them until 1890; and since that time and up until 1902 they continued their possession and use through tenants. Alex McDonald, son of Harriet McDonald, was born on the Young tract in 1860, and resided there with his parents until 1872, during which time the McDonalds had possession of their portion of the land, cultivating and using the same, with improvements thereon, consisting of houses, orchards, and fields. The Rankins resided on the land a number of years, and others, claiming under them, continued to reside there for many years. Possession of the other portions of the land awarded to the other Young heirs was held by them, and the heirs of George and Lucy Young paid taxes on the land, and upon trial tax receipts were introduced in evidence, beginning with 1866 and covering most of the years from that date until the filing of the suit, showing payment of taxes by them.

It appears that Lorenzo De Zavalla, Jr., at an early date, removed to the state of Yucatan in the republic of Mexico, and on August 18, 1896, executed to J. O. Davis power of attorney, authorizing the said Davis to sue for and recover any and all lands in the state of Texas to which he was entitled by inheritance or purchase, granting unto the said Davis an undivided one-half interest in the land.

On March 31, 1877, Emily Hand and eight other plaintiffs recovered a judgment against De Zavalla in the sum of $1,700 in the district court of Harris county, Tex., upon which execution was issued, which, upon May 3, 1877, was levied upon the entire three leagues of land owned by De Zavalla in the Victor Blanco grant, under which execution and levy the land was conveyed by the sheriff on June 5, 1877, to Emily Hand and four others, an undivided one-half interest passing by the deed to said Emily Hand, and thereafter, in the year 1880, Emily Hand and others conveyed to the said De Zavalla by quitclaim deed all their right, title, and interest in and to said three leagues. There appears to have been no active claim to the Young land asserted by Lorenzo De Zavalla from 1841 to the filing of the suit, nor payment of any taxes by him.

We do not regard the execution of the power of attorney by De Zavalla to Davis as an active assertion or claim of title to any particular tract of land; nor do we regard the issuance of the execution as evidencing an active claim of title by him, nor its levy and the sale of the land thereunder. The execution was levied upon the right, title, and interest of De Zavalla in and to the entire three leagues, and did not have reference to the particular 2,000 acres which, it is contended, was conveyed by a lost deed many years prior to that time. The fact that it was bought in by Emily Hand and others in 1877, and their right, title, and interest in the three leagues afterwards reconveyed by them to De Zavalla, does not militate against the presumption that there may have been a deed to the particular 2,000 acres claimed by the Youngs out of the three leagues by virtue of the contract made with Emily Hand in 1850, followed up by a conveyance by her in 1854. Under the decisions of our courts, it would seem that long-continued use and possession alone is sufficient upon which to base the presumption that a deed was, in fact, at some time executed covering the land. In Taylor v. Watkins, 26 Tex. 688, it appeared that the plaintiff relied solely upon long possession in support of the presumption of a grant from the state to herself. The court says that conveyances between private individuals are more readily presumed than are grants from the crown or state; but in that case, although it was a grant from the state which, it was contended, had been made, the court held that long-continued possession was sufficient to warrant the submission to the jury of the question of whether or not a grant had in fact been made; Judge Bell stating "that the presumption of a grant does arise from long and uninterrupted possession, where the possession is consistent with the presumption, and that the jury may properly be told this much as a matter of law." In Herndon v....