Morgan v. Baker

• Decision Date: 06 February 1897
• Citation: 40 S.W. 27
• Parties: MORGAN v. BAKER et al.
• Court: Texas Court of Appeals

40 S.W. 27

MORGAN v. BAKER et al.

Court of Civil Appeals of Texas.

February 6, 1897.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Trespass to try title by W. W. Morgan against S. A. Baker and others. Judgment for defendants, and plaintiff appeals. Reversed.

A. A. Kemble and H. M. Rhodus, for appellant. Lancaster & Beall and A. L. Love, for appellees.

LIGHTFOOT, C. J.

This is an action of trespass to try title, brought by appellant to recover about 35 acres of land out of the A. Raymer survey of 160 acres, and patented to him October 23, 1873. There was a judgment below for defendants, from which Morgan appeals.

Appellant (plaintiff below) claims title as follows: That the land was entered by A. Raymer under the act of November 12, 1866, and was patented to him October 23, 1873; that in September, 1873, Raymer and wife sold to W. G. Tutt this 35 acres; that in May, 1875, W. G. Tutt sold to J. C. Cooper, who sold to appellant. Appellees claim as heirs of W. G. Tutt, and set up a judgment in his favor against Raymer and wife, dated March 20, 1890; and also claim by limitation. Appellant complains of the charge of the court below, which, in effect, took the case from the jury, and instructed a verdict for appellees. There was testimony tending to show that after Raymer entered the land he sold and conveyed to W. G. Tutt by written contract that part of the survey now in controversy in September, 1873, and the latter paid the purchase price, and that patent was issued in the name of A. Raymer, October 23, 1873. If such was the case when the patent issued in the name of Raymer, the superior title to the land in controversy became vested in W. G. Tutt. Edwards v. Humphreys (Tex. Civ. App.) 36 S. W. 333; Satterwhite v. Rosser, 61 Tex. 172; Adams v. House, Id. 641; Capp v. Terry, 75 Tex. 403, 13 S. W. 52; Goode v. Lowery, 70 Tex. 156, 8 S. W. 73; Peterson v. Ward, 5 Tex. Civ. App. 208, 23 S. W. 637; Duren v. Railway Co., 86 Tex. 291, 24 S. W. 258. In the case of Satterwhite v. Rosser, above, the court said: "In this class of cases the patent, when issued, if in the name of the original grantee, inures to the benefit of the assignee. He acquires the legal title by estoppel. This we believe to be the true doctrine, unless by some means—as by a subsequent sale by the original grantee of the certificate to a stranger, who has no notice of the first sale, or some like case—some right or equity in favor of some third party may possibly grow up." There was testimony tending to show that W. G. Tutt sold to J. C. Cooper, in May, 1875, the same land he bought from Raymer. If this was true, this sale vested in Cooper all the title acquired by Tutt by reason of his purchase from Raymer, and which became vested in him after the issuance of the patent in the name of Raymer, giving to Cooper the superior title to the land. On March 20, 1890, there was a judgment in the district court of Ellis county in a suit of W. G. Tutt against A. Raymer, divesting all the title to the land in controversy out of the latter, and vesting it in the former. It does not appear that Cooper was a party to that adjudication, or that he was in any way bound thereby. It appears from the statement of facts in that case that Tutt obtained the judgment by reason of his purchase from Raymer, and the payment of the purchase price, as above set forth. Appellant, W. W. Morgan, is now the owner of all the interest of J. C. Cooper. Under this state of facts, the court erred in charging the jury to find a verdict in favor of the defendants, who are the heirs of W. G. Tutt.

2. As the judgment must be reversed on the charge of the court, we deem it proper to pass upon some other questions raised by appellant's brief, and which may arise on another trial. It is claimed that the three-years statute of limitation will not apply, for the reason that W. G. Tutt died, and that one year should be taken out of the time by reason of that fact, which would leave less than three years from the date of the judgment until this suit was brought. The statute is as follows: "In case of the death of any person against whom there may be cause of action, the law of limitation shall cease to run against such cause of action until twelve months after such death, unless an administrator or executor shall have sooner qualified," etc. Sayles' Civ. St. art. 3218. We know of no reason why this statute does not apply. But upon the question of three-years limitation, if W. G. Tutt sold and transferred his interest to J. C. Cooper for a valuable consideration, and authorized title to be made to him, and then subsequently brought suit against the original owner (Raymer) upon his purchase, without making Cooper a party, and recovered the land as against Raymer, such judgment as against Cooper or his vendees would be wanting in intrinsic fairness and honesty, would be only color of title, and would not support the statute of limitation of three years. Blum v. Rogers, 71 Tex. 668, 9 S. W. 595; Paxton v. Meyer, 67 Tex. 96, 2 S. W. 817; Brownson v. Scanlan, 59 Tex. 222; Long v. Brenneman, Id. 210; Harris v. Hardeman, 27 Tex. 248; Wright v. Daily, 26 Tex. 732.

3. The court did not err in charging that the deed from Raymer and wife to appellant, after the suit was brought, conveyed no title. All title, legal and equitable, had been divested out of them before the deed was made.

4. The fifth assignment of error complains that the court refused to permit plaintiff to read in evidence the conveyance dated September 6, 1873, from Raymer and wife to W. G. Tutt, and the transfers on the back of such instrument. The record shows that the instrument was objected to (1) because at the date of the transfer the land was the homestead of Raymer and wife, and it was not then duly acknowledged; (2) because the description of the land was not sufficient; (3) because, being acknowledged by Raymer and wife after this suit, it constituted an after-acquired title. We do not think that either of the objections is well taken. Whether the description of the land was sufficient to identify it was a question of fact which should have gone to the jury with the other testimony. The conveyance calls for 40 acres of land in the southeast corner of the tract homesteaded by said Raymer, joining the Thomas Jackson homestead on the east, and joining W. W. Perry on the north. The configuration of the survey was shown. The question of homestead in Raymer and wife presents no valid objection to the introduction of the evidence. It does not seem that Raymer and wife have ever set up a claim of homestead in opposition to the title, and the foundation of appellees' claimed title rests upon the original conveyance from Raymer and wife to Tutt, which he conveyed to appellant's grantor. In a similar case (Cosby v. Stimson [Tex. Civ. App.] 26 S. W. 275) Judge Stephens wisely says: "After the lapse of nearly thirty years without any assertion of such rights, now presumptively abandoned, it does not lie in the mouth of strangers to interpose the homestead exemption." This rule is strongly applicable to this case, when the objection of appellees seeks to exclude a conveyance to the ancestor under whom they claim, and under which conveyance such ancestor sold to appellant's grantor. But the objection would not be...