Newsom v. Davis

• Citation: 20 Tex. 419
• Parties: G. S. NEWSOM AND OTHERS v. M. M. DAVIS AND ANOTHER.
• Decision Date: 01 January 1857
• Court: Supreme Court of Texas

20 Tex. 419

G. S. NEWSOM AND OTHERS

v.M. M. DAVIS AND ANOTHER.

Supreme Court of Texas.

1857.

The mere fact that in the bond for title the land was described as lying on the west side of the Guadalupe river, whilst the land claimed was described in the patent as situated south of the Guadalupe river, was held not a sufficient discrepancy to cast doubt upon the identity of the land, where the description in the bond and patent agreed as to the original grantee and assignee, the number of acres and the county where situated. (Note that the main course of the Guadalupe is north and south, with meanders east and west.-- REPS.)

The presumption is that a deed made and delivered to the plaintiff's ancestor is in the possession of the plaintiff, or within his control, and the failure of the plaintiff to produce such deed, after due notice, entitles the defendant to prove its contents by parol.

The consideration of a bond for title may be proved by parol evidence.

Where a bond for title stipulated that the obligor would convey if the obligee should pay all the taxes due, it was held that the stipulation as to the taxes could not now (after several years) be deemed material.

The defendant, being in possession under a contract to convey, and having paid the consideration, is the equitable owner of the land. His is superior to the legal title remaining in his vendor; and there being no possession adverse to his right, the statute of limitations does not run against it.

Appeal from Gonzales. Tried below before the Hon. Fielding Jones.

Suit commenced February 11th, 1856, by the heirs of N. M. Newsom, deceased, against M. M. Davis and Felix Chenault, to recover a certain tract of 1,280 acres of land. It appeared from a copy of the patent, which was made a part of the petition, that the land was patented to N. M. Newsom, assignee of Thomas Casey, and situated in Gonzales county, south of the Guadalupe river. The patent was issued February 7th, 1846. The petition alleged that said Newsom died in Texas, intestate, in or about the year 184--, and that he left neither widow nor lineal heirs, children or their descendants, and that administration was never had upon his estate. The petition described the plaintiffs merely as heirs-at-law of said Newsom, residing in the state of Tennessee. It alleged that Davis resided in De Witt county.

Answer that said Newsom sold and conveyed the said land, on or about the month of April, 1845, by his certain title bond, to M. M. Davis, one of these defendants; and that, in addition to the consideration mentioned in said title bond, the said Davis sold and transferred to said N. M. Newsom a house and part of a lot in the town of Washington, in the county of Washington, in this state, and delivered the possession of the same at the time to said Newsom, and the said Newsom and his heirs have enjoyed the premises ever since; that the conveyance of said house and part of a lot was made as a further consideration of said title bond, and delivered to said Newsom at the same time that said title bond was made to said Davis of the 1,280 acres of land located by virtue of a certificate granted to Thomas Casey; that said Newsom and those claiming under him have said deed in their possession, and if the plaintiffs fail to produce it, which they are notified to do, defendants will prove the contents thereof at the trial. Prayer that Newsom's heirs be decreed to convey the land in pursuance of the bond, that the title be divested out of them and vested in the defendants, etc. Defendants also pleaded that they had had peaceable adverse possession for three years, and that they and those under whom they claim had had peaceable adverse possession for five and ten years, and they pleaded the statute of limitations, and suggested improvements in good faith.

Before the answer was filed, defendants had notified plaintiffs to produce the deed from Davis to Newsom for the house and part of a lot in Washington; and had also filed the bond from Newsom to Davis for the land in controversy, and notified the plaintiffs thereof. The bond was dated April 19th, 1845; was in the penal sum of $250; recited that Newsom had bargained and sold to Davis “a certain tract of land lying in the county of Gonzales and the republic of Texas, on the west side of the Guadalupe, granted by the republic aforesaid to Thomas Casey, for twelve hundred and eighty acres, and by him transferred to the said N. M. Newsom;” and read, “Now, if the said M. M. Davis shall pay or cause to be paid all the taxes due to the republic aforesaid, then and in that case the said N. M. Newsom binds himself, etc., to make to the said M. M. Davis a good and sufficient warrantee deed; then and in that case the foregoing bond to be null and void, otherwise to remain in full force and virtue.” It will be observed that the consideration for which the land was sold was not expressed in the bond. It recited that both parties were of Washington county, and the republic of Texas; was witnessed by two witnesses; was proved by one of them, Stephen R. Roberts, on the 29th of May, 1855, and was recorded on 18th of September thereafter.

Plaintiffs filed an amendment, in which they denied that any deed of conveyance, as set forth in defendants' answer, was ever executed by said M. M. Davis to said N. M. Newsom, “to said house and lot in the town of Washington;” that if any such deed was executed, it was not in consideration of said 1,280 acres of land; that said Newsom never went into possession of said house and lot, nor exercised ownership over the same; that said Newsom never had said deed to said house and lot in his possession; that defendants have never had peaceable possession of the land sued for; and, further, defendants say that the bond for title under which defendants claim is stale and long since barred by statute of limitations, having been executed more than ten years before it was proved up and recorded, and before the filing of this suit; and which said statute plaintiffs now plead in bar of defendants' recovery. There was no exception to the vagueness of the defendants' description of the house and part of a lot in the town of Washington; but plaintiffs moved to strike out the part of the answer in reference thereto, on the ground that it contradicted and varied the title bond under which defendants claimed.

The cause was submitted to the court without a jury, and, “after argument of counsel and due consideration thereon,” judgment for defendants, divesting all right, title and interest out of the plaintiffs and vesting same in defendants. It appeared from the statement of facts that heirship of the plaintiffs was admitted; that they gave the patent in evidence, and that the possession of defendants was admitted; that the bond was offered in evidence by defendants, and plaintiffs objected to it, on the ground that the property was not sufficiently described to identify the land; that there was no proof of conditions performed; and that it was barred by the statute of limitations, as pleaded; which objections were overruled.

Defendants proved by Stephen R. Roberts' deposition that deponent was present when Newsom sold or exchanged to Davis a tract of 1,280 acres of land in Gonzales county, Texas, located by virtue of a certificate granted to Thomas Casey, and received in consideration a house and part of a lot in the town of Washington, Texas; deponent was called upon to draw the instruments of writing between them, and became a subscribing witness thereto; that Newsom left Washington county soon after, and left deponent as agent in possession, authorizing him to rent said house to pay some dues which Newsom owed deponent. Deponent held possession or had charge of it until 1851; he left the possession in Mrs. Ellis. Deponent sent verbal word to the administrator of Newsom (as I understood there was one) by those having claims against Newsom; whether he ever got the word, deponent did not know; so far as deponent knew, Mrs. Ellis still had possession; of this, however, he was not certain; never saw Newsom after he left as before stated; heard nothing from his heirs; nor had anybody, to deponent's knowledge, claimed or exercised ownership or agency since deponent gave it up; never heard of Davis, or any one for him, making any claim to said house and lot.

Plaintiffs excepted to Roberts' testimony, on the ground that it purported to establish the contents of a deed from Davis to Newsom, in the absence of proof of the loss or destruction of said deed; that...