Mills v. Herndon

• Decision Date: 20 November 1883
• Docket Number: Case No. 4111.
• Citation: 60 Tex. 353
• Parties: J. P. MILLS v. W. S. HERNDON.
• Court: Texas Supreme Court

60 Tex. 353

J. P. MILLS

v.W. S. HERNDON.

Case No. 4111.

Supreme Court of Texas.

Nov. 20, 1883.

APPEAL from Grayson. Tried below before the Hon. Jos. Bledsoe.

Appellant having been appointed guardian ad litem of the minor heir of S. H. Toler, deceased, by the district court of Grayson county, for the purpose of instituting this suit, filed his petition in the ordinary form of an action of trespass to try title on the 15th day of February, 1879, against the defendants, to recover the land in controversy, and for the cancellation of their deeds, claiming that the defendants, except W. S. Herndon, were in possession.

Answer by general denial. By special answer the defendants in possession alleged that they had adverse possession of the land, described by metes and bounds, as purchasers in good faith for more than one year next before the commencement of the suit, and suggested improvements in good faith, deraigning their title from C. P. Green, the patentee, by attorney T. J. Green, to Wm. Johnson, of date ____, 1841; an inheritance from said Johnson by them as heirs, and as purchasers from the heirs.

The defendant W. S. Herndon claimed the land through a deed from Peter McGreal, who, he claimed, administered upon the estate of C. P. Green, in Brazoria county, Texas, on the 8th day of January, 1849, to James McFadden; deed from McFadden to James Dockrill; deed from Dockrill to James A. Miller; deed from Miller to Mary C. McGreal; deed from Mary C. McGreal to W. S. Herndon, J. C. Robertson and H. C. Hunt; deed from J. C. Robertson to W. S. Herndon; deed from H. C. Hunt to W. S. Herndon.

The cause was submitted to a jury at the September term of the district court, 1879.

Verdict in favor of the defendants, and judgment accordingly.

The deed from T. J. Green, as attorney of C. P. Green, to Wm. Johnson was claimed to have been destroyed by fire in 1842.

Wood & Wilkins and Mills & Witherspoon, for appellants.

Hare & Head and A. E. Wilkinson, for appellees, except Herndon, cited on the deposition: Ballard v. Perry, 28 Tex., 360, 366;Scott v. Delk, 14 Tex., 341.

On presumption of powers to make deed they cited: Johnson v. Shaw, 41 Tex., 430;Johnson v. Timmons, 50 Tex., 532;Veramendi v. Hutchins, 48 Tex., 552;Watrous v. McGrew, 16 Tex., 506;Dailey v. Starr, 26 Tex., 562;Hooper v. Hall, 35 Tex., 83;Able v. Sparks, 6 Tex., 349;Long v. Steiger, 8 Tex., 460, 462;Payne v. Benham, 16 Tex., 369, 370;Garrison v. Blanton, 48 Tex., 303.

W. S. Herndon, for appellee, cited: 42 Tex., 314;47 Tex., 355;46 Tex., 472;27 Tex., 496;15 Tex., 615, and cases cited; Burdett v. Silsbee, 15 Tex., 618, and cases cited; Thompson v. Talmic, 2 Pet., 168, 169;Perkins v. Fairfield, 11 Mass., 227;McPherson v. Cunliff, 11 Serg. & Rawle, 429; Gregnon's Lessee v. Astor, 2 Howard, 342, 343; 6 Pet., 729;Vorhees v. Bank of the United States, 10 Pet., 477, 478.

WATTS, J. COM. APP.

Appellants claimed the land in controversy by two distinct and different deeds, the first executed the 12th day of December, 1873, to their mother, S. H. Toler, and signed “Nath'l T. Green [seal], executor of C. P. Green, deceased; Lucy Alston Green [seal]. The second, executed the 3d day of April, 1874, to S. H. Toler by N. P. Green, as executor of the will of C. P. Green, deceased. In this he was also joined by his wife, Lucy Alston Green. By the first, which was executed and acknowledged in Tennessee, two tracts of land situated in this state were described--one the tract in controversy. That deed was recorded in Grayson county, February 17, 1874. The other deed conveyed the same land, and, besides, all the interest and effects of the estate. C. P. Green died testate in the state of North Carolina in 1843, where his will was probated the same year, by which his brothers, Thos. J. Green and N. T. Green, were his legatees and devisees, except as to some personal property and money which was given to certain servants. And N. T. Green was nominated as executor, and qualified under the will.

By the charge of the court it seemed that both of the deeds to Mrs. Toler were made by Nath'l T. Green, as executor of C. P. Green, deceased, and as the will of the latter had never been probated or properly filed and recorded in this state, and as Nath'l T. Green had never qualified here as executor, that therefore no title passed by reason of said deeds. This charge determined the case in the court below against appellants, and they claim that the charge is erroneous, because it appeared from the record that Nath'l T. Green was an heir at law of C. P. Green, deceased; and, also, that he was a legatee and devisee under his will, and that the will was admitted to probate in Grayson county on the ____ day of September, 1879. That the probate of the will in Grayson county related back to, and validated the conveyances. And if this was not true, then the conveyance first made passed all the interest that Nath'l T. Green had in the land, either as heir at law or devisee under the will.

It seems to be well established law, that an executor acting under a will probated in another state would have no authority to do any act in this state, as such executor, until he had complied with our statute in respect to the filing and recording such will. In Holman v. Hopkins, 27 Tex., 38, it is said, in effect, that it is well settled that the law of the place of the actual domicile is to govern his testamentary disposition of his personal property, wherever it may be situated. But as to real property the law of the place where land is situated governs, not only as to the capacity of the testator and the extent of his power to dispose of the property, but also as to the forms and solemnities necessary to give to the will its due attestation and effect. And in Houze v. Houze, 16 Tex., 598, it was held that it was not necessary, in order to admit a will probated in another state to record here, and give it the effect contemplated by the statute, to prove by other evidence that it had been legally probated in such other state.

The failure to comply with the statute in filing and recording such will goes to the authority of the executor, and the subsequent compliance with the statute would not relate back and give validity to previous acts done without authority. But this rule would not apply to conveyances made by devisees under such a will. Their conveyances might be cured or healed by a subsequent filing and recording the will, if the rights of innocent third parties had not interposed. To this effect, as we understand it, is the case of March v. Huyter, 50 Tex., 253.

In the first conveyance there is nothing upon the face of the deed to indicate that Nath'l T. Green was there acting as executor of C. P. Green, deceased. The same purports to be a conveyance with special warranty by Nath'l T. Green, joined by his wife, to S. H. Toler of the land in controversy and another tract. The mere fact that he appended “executor of C. P. Green, deceased,” to his signature, would not have the effect of making it the deed of him as executor only. Nor does it seem to us that the fact that the commissioner, in his certificate of acknowledgment, states that the grantor acknowledged the deed as executor of C. P. Green, deceased, would have the effect to thus limit the operation of the same.

The statute then in force provided “That all alienations of real estate, made by any person, purporting to pass or assure a greater right or estate than such person may lawfully grant or assure, shall operate as alienations of so much of the right and estates in such lands, tenements or hereditaments, as such person may lawfully convey.” Pasch. Dig., art. 998.

It would seem that the deed under consideration passed to, and vested in, Mrs. Toler all the right, title, interest and claim that Nath'l Green then had in the land, whether as heir at law, devisee under the will of C. P. Green, or as purchaser. This being true, it follows that the charge of the court was erroneous, and this requires a reversal of the judgment.

Appellees, except W. S. Herndon, claim through a supposed deed executed by T. J. Green, as agent of C. P. Green, to Johnson, in 1841, and which, it is claimed, was destroyed by fire in 1842, and through mesne conveyances from Johnson's heirs, subsequent to his death in 1874.

Where a party, under a lost or destroyed deed, has exercised acts of ownership and control under it, after a great lapse of time strict proof is not required to establish its existence, contents and subsequent loss. Berry v. Jourden, 11 Rich. (S. C.) L., 67; Lewis v. Baird, 3 McLean, 56. But where the party claiming under such lost or destroyed deed has permitted a great lapse of time without asserting ownership and control over the property, before he can have title to the land, duly authenticated by written evidence, set aside or vacated on the assumption of the previous lost deed, he must adduce clear proof, not only of the existence and execution of the purported deed, but also so much of its contents as will enable the court to determine the character of the instrument. Metcalf v. Van Benthuysen, 3 Comst. (N. Y.), 424.

The rule is...