Ray v. Chisum, 6600

• Decision Date: 05 March 1953
• Docket Number: No. 6600,6600
• Citation: 260 S.W.2d 118
• Parties: RAY et al. v. CHISUM et al.
• Court: Texas Court of Appeals

Page 118

260 S.W.2d 118

RAY et al. v. CHISUM et al.

No. 6600.

Court of Civil Appeals of Texas, Texarkana.

March 5, 1953.

Rehearing Denied June 25, 1953.

Paul W. Jeffrey, Houston, J. A. Mallory, Lindale, Smith & Smith, Tyler, for appellants.

Ramey, Calhoun, Marsh, Brelsford & Sheehy, Lasseter, Spruiell, Lowry, Potter & Lasater, Tyler, Thompson, Knight, Wright, Weisberg & Simmons, Dallas, W. P. Z. German, James E. Hara, Tulas, Okl., Ralph B. Shank, Dallas, Harry Loftis, Smith, Johnson & Hathaway, Warren G. Moore, Tyler, Jerome Chamberlain, Dallas, Frank L. McClendon, Tyler, T. B. Blanchard, Houston, for appellees.

LINCOLN, Justice.

Appellants filed this suit in trespass to try title to recover 200 acres of the Daniel Minor Survey of land, No. 1045, in Smith County. They claimed as heirs and the only heirs at law of B. B. Ray, deceased, grantee in a deed from H. O. Hynson, dated December 18, 1875, filed and recorded in the deed records of Smith County the same date. The plaintiffs also pleaded title under various statutes of limitation. The appellees, defendants below, filed pleas of not guilty, general denial and the several statutes of limitation. They claimed the land sued for as grantees or heirs of grantees in instruments, consisting of warranty deeds, oil, gas and mineral leases, royalty deeds, etc. The parties on each side are numerous. The record is voluminous, including some 250 exhibits. At conclusion of the evidence the trial court denied the motion of the plaintiffs for an instructed verdict and granted a like motion of the appellees, and under instruction of the court, the jury returned a general verdict for the defendants. Judgment was entered that, except as to certain parties who had filed disclaimers, the plaintiffs and parties aligned with them take nothing by their suit, and that the appellees recover the title and possession of the land in controversy as their rights, titles and interests appear of record. The appeal is here without a motion for new trial under provisions of Rule 324, Texas Rules of Civil Procedure.

In their effort to discharge the burden cast upon them by the long-standing and well-established rule that the plaintiffs must recover, if at all, upon the strength of their own title and not upon the weakness of their opponents', 41 Tex.Jur., p. 497, Sec. 33, and in their attempt to trace their chain of title to the sovereignty of the soil, appellants put in evidence: (1) Land Certificate No. 446, issued by the Board of Land Commissioners for Nacogdoches County to Daniel Minor, for one-third league, 1,476 acres, dated March 21, 1838; (2) transfer of the certificate, May 17, 1837, from Daniel Minor to Abraham H. Scott, filed and recorded in Smith County January 9, 1874; (3) conveyance dated October 2, 1837, from Scott to Niles F. Smith of entire headright (unlocated) of Daniel Minor, filed and recorded in Smith County January 9, 1874; (4) transfer and conveyance of Daniel Minor Certificate No. 446, from Niles F. Smith to H. W. Carter, dated September 1, 1851, reciting that the conveyance from Scott to Smith, next above, as in trust for H. W. Carter. This instrument was recorded in Panola County, Texas, April 1, 1853, and a certified copy from Panola County was filed and recorded in Smith County, December 15, 1950, after the suit was filed; (5) judgment of the district court of Panola County in cause No. 697, H. W. Carter, plaintiff, v. James Heffner, defendant, dated December 21, 1855; decreeing that the transfer of Certificate No. 446 from Scott to Smith, supra, was in trust for H. W. Carter, that Carter recover said certificate from the defendant, and that the defendant deliver the same to Moore, Carter's attorney of record. This judgment refers to Carter as H. W. Carter and as Hamilton W. Carter. On the margin of the minute book is a notation, dated January 17, 1856, signed 'Chas. D. Moore, Atty. for Carter,' acknowledging receipt of the certificate sued for. A certified copy of this judgment was filed in the County Clerk's Office of Smith County July 8, 1949, after this suit was filed, and duly recorded; (6) Patent from the State of Texas to Daniel Minor, dated August 27, 1861, filed for record in Smith County January 9, 1874.

It is questionable that the instrument referred to in item (4) above, even though admitted over appellees' objections, may be considered as a muniment of title in behalf of appellants. The stipulation under which counsel might introduce certified copies of records was more restrictive than that referred to by Judge Harvey in Woldert v. Skelly Oil Co., Tex.Civ.App., 202 S.W.2d 706, 707, in that it provided that the parties might introduce a certified copy 'from the records of the office of the county clerk of any county in Texas which was the proper place for record of such instrument or act at the time of its recordation or performance of the act,' subject to any other valid objection (italics ours). However if we should assume that the foregoing record evidence, existence of which is without dispute, vested title to the certificate and to the land located by virtue thereof in H. W. or Hamilton W. Carter, then we find that such title vested in said Carter as early as October 2, 1837, and was still vested in him as late as January 17, 1856. There is no direct record evidence of a transfer of title out of Hamilton W. Carter. Appellants' abstract of title, filed as demanded by appellees, after setting out the foregoing instruments upon which they relied, asserted the following as a part of their title: '(5) Proof of facts and circumstances supporting and constituting a presumption that H. W. Carter transferred and assigned the Daniel Minor Certificate to William Davenport, subsequent to January 17, 1856, and prior to March 2, 1857, said instrument having been lost or misplaced.' (We think the date, 'March 2, 1857' is a typographical error and should be 'March 20, 1857,' when the certificate was located in Smith County. We will so consider it). Appellants claimed under William Davenport as their predecessor in title.

The only proof presented by appellants of facts and circumstances in support of a presumption of grant from Carter to Davenport which could possibly have any probative value are certain proceedings in a suit filed in the district court of Panola County on June 7, 1853, captioned H. W. Carter v. J. K. Williams, No. 429. In evidence are the petition, the citation, the answer, and the judgment. The petition alleges that the suit was brought by H. W. Carter 'for the use of William Davenport, a resident of Smith County,' to recover the Daniel Minor Certificate. The answer of Williams alleges that he holds the certificate as county surveyor of Panola County, that land in Panola County had been located by virtue of said certificate by one Joshua G. Gill, who claimed it and who refused to relinquish it, and that the plaintiff had shown no authority for his demand nor any transfer from the original grantee. On June 13, 1854, judgment was entered dismissing the suit for want of prosecution.

Appellants' point is that the recitals of the petition are sufficient to constitute a presumption that Davenport owned the certificate by transfer from Carter, or at least, were sufficient as circumstantial evidence to raise an issue for the jury. Viewing this evidence in the light most favorable to appellants as the losing parties, Thomas v. Postal Telegraph-Cable Co., Tex.Com.App., 65 S.W.2d 282, and indulging every inference in favor of appellants which might be drawn from it, White v. White, 141 Tex. 328, 172 S.W.2d 295, we are unable to agree with appellants' contention. 'Nothing can be more clear than that, to ascertain who is the party plaintiff in a suit, we must look to the petition, and to that alone.' McFadin v. MacGreal, 25 Tex. 73, 79. If we should look outside the petition there is no evidence contrary to what is shows. Looking to the petition, we find that the real party plaintiff was Davenport. Carter was but a nominal and formal party. He is not shown to have any interest in the suit nor in the matter in litigation. Any attempt to read an interest in him would be mere speculation. It is Davenport's suit, making use of Carter's name. He could have done so without Carter's knowledge or consent. McFadin v. MacGreal, supra; Dowell v. Mills, 32 Tex. 440; Galveston, H. & S. A. R. R. Co. v. Freeman, 57 Tex. 156; Stafford v. Harris, 82 Tex. 178, 17 S.W. 530; Bond v. Carter, Tex.Civ.App., 73 S.W. 45.

The averments of the petition being those of Davenport alone, they were self-serving and ex parte. Recitalis in ancient instruments have often been held admissible, even though they were hearsay or self-serving. Magee v. Paul, 110 Tex. 470, 221 S.W. 254. But in all our decisions where we have found this rule stated, its application was to recitals in deeds or other muniments of title, or in instruments intimately related thereto, as illustrated in Brewer v. Cochran, 45 Tex.Civ.App. 179, 99 S.W. 1033, writ denied. Neither the judgment in the Panola County suit nor recital in point was a muniment of title. The judgment decided nothing in favor of Davenport. As we view it, the record in that case evidences circumstantially that Davenport did not have any right to the land certificate, if it evidences anything materially. The petition was unverified, while the answer of Williams was sworn to. The answer itself was an ancient instrument, entitled to as much verity as the petition. It completely negatived the right asserted by Davenport. With the issue thus joined Davenport had the opportunity to prove up his claim to the land certificate. He did not do so, but apparently abandoned his suit and let it be dismissed without prosecution after it had been pending in the district court for a year. During the pendency of the suit there was on record in the deed records of Panola County an assignment of the certificate from Niles F. Smith to H. W. Carter. It...