Portis v. Hill

• Decision Date: 31 January 1868
• Citation: 30 Tex. 529
• Parties: DAVID Y. PORTIS ET UX. v. WM. G. HILL ET AL.
• Court: Texas Supreme Court

30 Tex. 529

DAVID Y. PORTIS ET UX.

v.WM. G. HILL ET AL.

Supreme Court of Texas.

January, 1868.

Both by the civil and common law there are only two methods of acquiring property, by descent or purchase.

Blended as our system is (embracing both the law and the equity of every case under adjudication), the principles of equity, as well as of law, are to be applied to the admissibility of proofs. And where the muniments are of ancient date, and the parties are shown to have acted upon them, and the action is as well for partition as to try title, they may be admitted, although in strict law they have not been proved and recorded as required by the statute.

Where parties have admitted and acted upon instruments they are estopped from denying them, unless the admissions were made by mistake or procured by fraud.

To pass the mere legal title from one holder to another, it is not necessary that the conveyance should be recorded in the office of registration. The title of the grantor is effectually transmitted by signing and delivering the deed. The record is to protect creditors and subsequent purchasers. Pas. Dig. art. 3876, notes 907, 908, 909.

Where the grantor of land passed it by deed to A, and after the death of the grantor his heirs recognized this deed and confirmed it upon the death of A, the property descended to his heirs, and one who knew of all these transmissions and assented to them cannot go behind these links of title to dispute them.

A party ought not to be heard to contradict and falsify his own solemn admission and declarations made before the judicial tribunals.

The courts will not presume fraud or malversation of a public officer in order to defeat a legal title.

Nor will a court, in order to defeat a recovery, regard a possible, although doubtful, equity in a third party.

Where an ancestor has acquiesced in acts so as to conclude her, her heirs are likewise concluded.

Where neither the three, five, nor ten years' possession could protect the original defendants for want of actual adverse possession of the locus in quo, those who went into possession under these same defendants after the action was commenced, and who are made parties by an amended petition, cannot claim the benefit of time. Pas. Dig. arts. 4622-4624, notes 1031-1033.

The fact that the original suit was in equity, in which the plaintiffs claimed an undivided half of five leagues, cannot change this rule, even after the plaintiffs recognized a partition by their ancestors, and limited their demand to the entirety of two leagues.

All persons who purchase pending a suit have notice of the extent of the claim, and are bound to take notice until the final disposition of it, and if the plaintiff afterwards restrict his claim, they must take notice of the change; and if they purchase pending the litigation, they need not be made parties, but are subject to be ejected as privies to their grantors, in the same suit with him.

Alien heirs of citizens of Texas had the right to inherit in coparcenary with citizen heirs under the constitution and laws of Texas. Pas. Dig. art. 43, notes 147, 247, pp. 37, 38, 39.

Where, in a partition suit, the jury find that one heir has purchased the interest of another, the court will presume in favor of the verdict.

Where the whole judgment is in accordance with our notions of the equities of the case, minor and technical objections to the mode of the proof merely will not be considered, but the judgment will be affirmed.

APPEAL from Galveston. The case was tried before Hon. PETER W. GRAY, one of the district judges.

The original and amended record cover over five hundred pages of closely-written manuscript. In after ages, when the world shall wonder at trials about a single land grant, large enough for a kingdom, it will be a matter of regret that our reports of such cases are not in extenso. But the reporter is limited to an intelligent statement of the narrative of facts. For a history of the case, as developed on the former trials, the learned reader is referred to 3 Tex. 373, and 14 Tex. 69. In these cases, although the suit was for partitions, the title was, to some extent, put in issue.

When before this court last, the judge who delivered the opinion said “that the evidence conduces strongly, if not conclusively, to prove that James E. B. Austin held whatever interest the Cummingses had conveyed to him in the hacienda as the trustee of Stephen F. Austin, who paid the consideration,” and as the representatives of Stephen F. Austin were not before the court, the same was reversed and remanded.

After the cause was remanded the plaintiffs filed an amended petition, in which, among other things, they averred that the pretended claim of Stephen F. Austin had been litigated between the estate of said Stephen F. and Eliza M. Hill, the mother of the minor plaintiffs, and that by the judgment of the supreme court in 1842, the interest in the hacienda, which had been conveyed by the Cummingses to J. E. B. Austin, was decreed to be in said Eliza M. Hill, and S. F. Austin's estate was perpetually enjoined from asserting any such claim. They also brought in other defendants, who had settled on the land pending this suit.

The venue was subsequently changed, by consent, to Harris county, and from there it was again changed, by consent, to Galveston county. The cause was again tried at the spring term, 1857, and there were a verdict and judgment for the plaintiffs for the two middle leagues of the hacienda. From this judgment Portis and wife, and those claiming under them since this suit was brought, appealed.

Those familiar with the Spanish law must know that a hacienda is five leagues of land. Pas. Dig. art. 515, note 342.

The statement of facts proves the grant of the hacienda of five leagues to James Cummings, on the 9th of August, 1824; that James Cummings sold half it to James E. B. Austin on the 5th of August, 1825; that James Cummings died in 1826, leaving no wife or descendants, and but one ascendant, his mother, Rebecca; that he left an instrument purporting to be a will, in which he declared that his brothers, John and William, were equally interested with him in the hacienda when he obtained it, and that he gives it to them. He also gives his sisters, Sarah and Rebecca (now Rebecca Portis), a league of land on the Bernard, and the residue of his estate equally between his brothers and sisters; that John and William executed a deed on the 12th of June, 1828, in which they recite the will and recognize it, and by which they convey to James E. B. Austin the two middle leagues of the hacienda, and declare that said two leagues are bounded on the west by a league and a half that William has taken as his part, and on the east by a league and a half that John has taken as his part; that the original contract for the sale of the half of the hacienda from James Cummings to James E. B. Austin was made by Stephen F. Austin, the brother of James E. B. Austin, and that Stephen F. paid the consideration therefor; also, that the deed from John and William to James E. B. Austin for the two middle leagues was made and intended as a partition between Stephen F. and John and William; that they all agreed to it, and afterwards claimed portions of the hacienda in accordance therewith; that Rebecca Cummings, the mother of James Cummings, who was, by the law then in force, his forced heir, died in 1831 or 1832, without ever making any objection to the will; that her heirs were John Cummings, Rebecca Portis, the defendant, and Samuel A. Cummings, son of William Cummings, who had previously died. The said John and William, the father of Samuel A., recognized the will and acted on it in making a partition of the hacienda. Rebecca Portis acted on and recognized the will of James Cummings, when she administered upon John Cummings' estate, and inventoried the lower part of the hacienda as his estate in 1839 and 1840; and again, when she presented the will to the probate court of Austin county, with a petition for its probate, in 1840; and again, in 1843 and 1844, when she administered upon William Cummings' estate, and inventoried the upper part of the hacienda as his estate; and again, within the last three or four years, when she set it up and claimed the Bernard land under it, in a suit between herself and Samuel A. Cummings.

The defendants in this suit are Rebecca Portis, and those claiming under her since the institution of this suit, and Samuel A. Cummings, son of William, and the unknown heirs of Samuel and Thomas Cummings, who were brothers and heirs of John Cummings, who died about 1839. They claimed title in the hacienda under John and William, whose title to it was recognized by the will of James.

A perfect legal title was thus claimed to be in James E. B. Austin for the two middle leagues.

The statement of facts shows that James E. B. Austin married Eliza M. Westall, the mother of the minor plaintiffs in this suit, about 1826 or 1827; that he died about 1828 or 1829, leaving a son, Stephen F. Austin, Jr., his only heir; that his son died, a minor, about February, 1837, leaving his mother, Eliza M., his only heir; that Eliza M. married William G. Hill, in December, 1835, or January, 1836; that she died about June or July, 1847, leaving the six children, minor plaintiffs in this suit, her only heirs; that William G. Hill, father of the minor plaintiffs, was the administrator of the estate of Eliza M. Hill.

In regard to any equitable interest claimed to have been in Stephen F. Austin, the statement of facts shows that Stephen F. Austin died in December, 1836, and that his relatives and heirs were sisters, Emily M. Perry, and his nephew, Stephen F. Austin, Jr.; that he left a will, in which he claimed to own this land, and devised it to his sister, Emily M. Perry, and his nephew, Stephen F. Austin, Jr., son of James E. B. Austin, as his residuary devisees, they being also his heirs at law, and also...