Parks v. Caudle

• Decision Date: 21 December 1882
• Docket Number: Case No. 1334.
• Parties: JOEL D. PARKS ET AL. v. J. H. CAUDLE AND WIFE.
• Court: Texas Supreme Court

58 Tex. 216

JOEL D. PARKS ET AL.

v.J. H. CAUDLE AND WIFE.

Case No. 1334.

Supreme Court of Texas.

Dec. 21, 1882.

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

The suit was one of trespass to try title. The opinion states all facts necessary to a proper understanding of the points decided, except the description given by the party and witness Caudle of the lost deed. On this point he testified as follows: “Joel D. Parks executed a deed to Wm. A. Park's headright certificate, located in Grayson county, Texas, less the locative interest, and delivered the deed to Wm. A. Park; W. H. Mathews and F. M. White witnessed the deed.” White testified that in 1858 “Joel D. Parks transferred back to Wm. A. Park the headright certificate of W. A. Park, situated in Grayson county, Texas.”

J. P. Mills, for appellant.

I. Appellees not having alleged in their pleadings that the deed on which they relied from Joel D. Parks to Wm. A. Park, of date ____ day of _____, 1858, had been lost, could not introduce secondary evidence of its contents without first filing an affidavit of its loss. Bateman v. Bateman, 16 Tex., 542-4;Bateman v. Bateman, 21 Tex., 432;Evans v. Womack, 48 Tex., 234;Young v. Guilbeau, 3 Wall., 640; 1 Greenl. Ev., sec. 558, note 1 (13th ed.).

II. Appellee, J. H. Caudle, having married the daughter of Wm. A. Park after his death, and having joined his wife in the prosecution of this suit, giving bond for costs, was not a competent witness to any transaction that occurred between Wm. A. Park and Joel D. Parks, the heirs of Joel D. Parks being defendants. R. S., art. 2248; Markham v. Carothers, 47 Tex., 25, 26;Roberts v. Yarboro, 41 Tex., 452-3;Dikes v. Miller, 24 Tex., 422;Dial v. Crain, 10 Tex., 452;Hubbell v. Hubbell, 22 Ohio St., 221; Abbott's Trial Ev., p. 61; Blood v. Fairbanks, 50 Cal., 422; 66 Pa. St., 303; 81 Pa. St., 507; 41 Ala., 634-5, 706; 1 Wharton's Ev., sec. 47, note 1.

III. When parol evidence is resorted to to establish the contents of a lost deed, it should be clear and certain; it should show that it was properly executed with the formalities required by law; the contents of the deed must be substantially proven, that the court may determine that it is such an instrument as will convey land, and it must be more particularly described and identified than giving the name of the headright and the county where situated.

IV. Appellees having introduced parol evidence to establish the contents and loss of an unrecorded deed, executed by Joel D. Parks to Wm. A. Park in 1858, and that said deed was executed to cancel a deed absolute on its face and properly recorded, executed by Wm. A. Park to Joel D. Parks for the same land in 1856, the possession of the deed by a stranger in 1872 or 1873 should be accounted for.

Hare & Head and E. McLain, for appellees.

I. A suppletory affidavit is not required where the loss of the instrument is shown by witnesses on the trial; but was only required at common law, when parties could not be witnesses, to make them remove any suspicion that the original might be concealed by them, and to enable a party to the suit to thus show the loss of an instrument that he might not be able to prove by any one else. Withee v. Fearing, 23 Tex., 506; 2 Phillips on Ev., top page 434; Cowen, Hill & Edwards' Notes, 446; Id., top pages 463-477, 475 in particular; Davis v. Spooner, 3 Pick., 287.

II. A suppletory affidavit is only required when the suit is directly upon the lost instrument, and not when it only constitutes a link in the chain of title. In the latter case it is only necessary that its non-production be accounted for by the evidence on the trial. White v. Burney, 27 Tex., 50;Cheatham v. Riddle, 8 Tex., 162. See also 2 Phillips, top page 475, edition of 1868; 9 Wheat., 581.

III. The testimony of the plaintiff under oath on the witness stand is equivalent to a suppletory affidavit to the facts testified to. See authorities above.

IV. The statute only excludes parties from testifying to statements by the deceased to the witness, and to transactions between the witness and deceased, and do not prohibit him from testifying to transactions between deceased and third persons, occurring when the witness had no interest therein. The testimony of the plaintiff Caudle was not as to any statements by Joel D. Parks to him, or to any transaction between them, but to a transaction between Joel D. Parks and Wm. A. Park, at which the witness was present, long before he married Wm. A. Park's daughter. Potter v. Wheat, 53 Tex., 401;41 Tex., 449;55 Tex., 145;102 U. S., 163;Isenhour v. Isenhour, 64 N. C., 640; 44 Ga., 73; 64 N. C., 642; 48 Ga., 580; 76 Pa. St., 180; 63 Ga., 271; 58 N. Y., 338; Reilly v. English, Supreme Court of Tenn., April term, 1882, cited in Central Law Journal, August 11, 1882, vol. 15, No. 6, p. 113, and The Reporter of August 30, 1882; Martin v. Jones, 72 Mo., 23, cited in U. S. Dig., New Series, vol. 12, p. 875, directly in point; Lines v. Lines, 54 Iowa, 600, cited in U. S. Dig., vol. 12, p. 875, New Series.

V. J. H. Caudle not being interested at the time he acquired the information testified to, his subsequently marrying a daughter of one of the parties to the transaction, and being made a formal party to the suit as such husband, would not disqualify him, as a witness, from testifying to the facts thus acquired. Cross v. Wellwood, The Reporter, vol. 9, 587; 58 N. Y., 338.

VI. The nature of the conveyance, and the land conveyed by the lost deed from Joel D. Parks to Wm. A. Park, was amply shown by the evidence. Chalk v. Foster & Blessing, Galveston term Supreme Court, 1882; Abbott's Trial Evidence, 709.

VII. The evidence as to the loss of the deed was amply sufficient to authorize the admission of secondary evidence. White v. Burney, 27 Tex., 50;Cheatham v. Riddle, 8 Tex., 162; 2 Phillips, cited above.

GOULD, CHIEF JUSTICE.

J. H. Caudle and wife sue in right of the wife, as sole heir of Wm. A. Park, deceased, to recover the Wm. A. Park one thousand four hundred and seventy-six acre survey, patented to him in 1849, and conveyed by him to Joel D. Parks in 1856. Their claim to the land is based on an alleged reconveyance by Joel D. Parks to Wm. A. Park in the fall or winter of 1858, and they sought to establish the execution of this deed by oral testimony, asserting that the instrument itself had been destroyed by fire. Wm. A. Park died in 1859, and Joel D. Parks died in 1867. The heirs of Joel D. Parks are defendants, claiming by descent from him. In the petition there was no allegation of the destruction of the alleged deed, but it was set forth in an abstract of plaintiffs' title, filed under notice from appellants. No affidavit of its loss or destruction was filed, but the plaintiff Caudle testified that the deed was found in 1873 or 1874 amongst the papers of one Lawton, former county clerk of Red River county; that witness kept it two months and gave it to his brother-in-law, Wm. A. Park, Jr., to have it recorded in Grayson county, and has never seen the deed since. Wm. A. Park, Jr.'s store was burned in Ellis county in 1875, while witness was in Red River county, and Wm. A. Park, Jr., told witness that the deed was burned. Wm. A. Park, Jr., died in 1876, and all his papers and effects came into witness' possession, and that he had looked them through frequently, and never had seen the deed. Caudle was also allowed to testify, over objection, that Joel D. Parks, in the fall of 1858, at the store of witness in Red River county, executed and delivered to Wm. A. Park a deed reconveying his, Wm. A. Park's, headright certificate located in Grayson county, less the locative interest, and that W. H. Mathews and F. M. White witnessed it. Caudle also testified as to what passed between Parks and Park at the time the reconveyance was made, explanatory of the transaction. The depositions of F. M. White were read, to the effect that he witnessed a deed from Joel D. Parks to Wm. A. Park, for W. A. Park's headright of land in Grayson county, made in the fall of 1858 at Pine Bluff, Red River county, Texas, the deed being signed by W. N. Mathews, also as a witness. It appears that Mathews is dead. No further statement of the testimony of Caudle and White is given than is necessary to the understanding of the questions passed upon, nor is it even attempted to give any statement of other testimony bearing on the merits of the case on either side.

The plaintiffs obtained a verdict, and from the judgment rendered thereon the defendants appeal. Was any further allegation of the destruction of the deed necessary, and was it necessary to file an affidavit of its loss instead of proving the fact by a witness on the stand? Each of these questions must be answered in the negative. In actions of this character the petition need not set out the plaintiff's chain of title, and consequently need not state...