Overby v. Johnston

• Decision Date: 17 March 1906
• Citation: 94 S.W. 131
• Parties: OVERBY et al. v. JOHNSTON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

94 S.W. 131

OVERBY et al. v. JOHNSTON et al.^*

Court of Civil Appeals of Texas.

March 17, 1906.

On Rehearing April 21, 1906.

Appeal from District Court, Haskell County; H. R. Jones, Judge.

Action by J. P. Johnston and others against W. T. Overby and others. From the judgment, defendants appeal. Reversed and rendered in part, and affirmed in part.

S. W. Scott, for appellants. H. G. McConnell, for appellees.

SPEER, J.

The following statement of the nature and result of the suit is made by appellants and concurred in by appellees: "This was an action of trespass to try title, wherein appellees sued appellants for the title and possession of the George J. Johnstone 640 acre survey, situated in Haskell county, Tex., and located by virtue of donation warrant, No. 225, issued to said Johnstone on May 26, 1838, for having fought in the battle of San Jacinto. Appellees set out and pleaded specifically the title of defendants, alleging that it was void, but asking that in the event defendants should be found to have any equities, for the court to find the value thereof and offering to satisfy any finding of the court in regard thereto a reasonable time for that purpose to be allowed. Defendants Overby pleaded a general demurrer, general denial, and plea of not guilty; five years limitation; improvements in good faith, and that they purchased the land in suit from Heber Stone, M. L. G. Stone, and Ann M. Giddings, receiving a general warranty deed therefor, and impleading these parties on their warranty, and suggesting the death of Mrs. Giddings and that the Stones were her independent executors and legal representatives. The Stones adopted as their own the answer of the Overbys; admitted their liability on their warranty if the land in suit was lost; pleaded an implied locative contract between George J. Johnstone and R. M. Williamson, to whose rights defendants were subrogated, by virtue of subsequent conveyances, by reason of which plaintiffs, if they recovered the land, became liable to pay defendants the value of one-half the land for locative services, as well as for reimbursement for the taxes paid on the land, from time of the location of the certificate down to the time of trial, and also for repayment of the $100 consideration, and interest thereon, paid by R. M. Williamson to G. J. Johnstone on 30th May, 1838, when the latter gave Williamson the 99 years lease on the land. "It was also set out and pleaded that by reason of their acquiescence in the possession of the certificate, the location of the land, payment of the taxes, and claim of ownership of the land, accompanied with the possession thereof by defendants, that the plaintiffs were precluded and estopped from recovering the land. The judgment of the court was in favor of the plaintiffs for the land sued for; in favor of the defendants, W. T. & C. T. Overby for $957.50 for the value of improvements made in good faith; that plaintiffs should pay to the clerk of the court $610.60, being the original consideration paid by R. M. Williamson to George J. Johnstone, with interest from May 30, 1838, to time of trial, and that until said money was so paid, plaintiffs should not have their writ of possession; also that defendants Overby recover from Herber & M. L. G. Stone the sum of $640, being their cash payment for the land, to secure repayment of which they were given a lien on the $610.60 required to be paid by plaintiffs, and the purchase-money notes given by Overbys for the land were canceled."

At the threshold of the discussion of the assignments of error in this case, we are confronted with the most serious question of whether or not appellees have shown themselves to be the nearest living heirs of George J. Johnstone, deceased, and therefore entitled to inherit from him in preference to all others. Whether or not they have shown such fact depends upon the admissibility in evidence of the declarations of one Edmond Finch, deceased, a "great-uncle" of appellee J. M. Johnston, through whom, as a witness in the case, such declarations were reproduced. The testimony of this witness, tending to show that the grantee George J. Johnstone, left no heirs in the descending line, and which therefore supported appellees' claim to a right of collateral inheritance, was, "I learned through Uncle Edmond Finch that George J. Johnstone was never married, and that he died in Texas." Now, it is objected that this evidence being hearsay, though the declarations of a deceased person, is inadmissible to prove matters of family history, etc., until it is first shown that the declarant was related either by blood or marriage to the person who died seised. If this proposition be correct, it is too clear for argument that the declarant Edmond Finch is not shown by the record to be related to the propositus George J. Johnstone. As a great-uncle, Edmond Finch may have occupied any one of seven positions in the family tree of the witness J. M. Johnston. The declarant being named Finch, of course could not have been a brother to the witness's paternal grandfather, but may have been a brother to the witness's maternal grandfather, or to either of his grandmothers. Moreover, he necessarily had four chances of being the husband of the witness's great-aunt. In at least four of these contingencies the declarant would not have been related by blood or marriage to George J. Johnstone, and the proposition above being correct, the case would have to be reversed for failure of appellees as plaintiffs to show their right to a recovery of the land. Leland v. Eckert, 81 Tex. 226, 16 S. W. 897; French v. McGinnis (Tex. Civ. App.) 21 S. W. 941. But the question recurs, Is the proposition that the declarant must be shown to be related to George J. Johnstone sound? Greenleaf (14th Ed., § 103) declares "that the law resorts to hearsay evidence in cases of pedigree upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is therefore restricted to the declarations of the deceased persons who were related by blood or marriage to the person, and therefore interested in the succession in question." Both the reason and the rule thus laid down are quoted and approved by our Supreme Court in Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682, 23 Am. St. Rep. 370. The text...