Rice v. St. Louis, A. & T. Ry. Co.

• Decision Date: 31 May 1894
• Parties: RICE v. ST. LOUIS, A. & T. RY. CO. et al.
• Court: Texas Supreme Court

26 S.W. 1047

RICE v. ST. LOUIS, A. & T. RY. CO. et al.

Supreme Court of Texas.

May 31, 1894.

Error from court of civil appeals of third supreme judicial district.

Trespass to try title by George N. Rice against the St. Louis, Arkansas & Texas Railway Company and others. Judgment for defendants. Plaintiff appealed to court of civil appeals. Affirmed (24 S. W. 1099), and plaintiff brings error. Reversed.

Duffie & Duffie and Davis & Harris, for plaintiff in error. Sam H. West and Clark, Dyer & Bolinger, for defendants in error.

GAINES, J.

The plaintiff in error brought this suit to recover of defendants in error the tract of land in controversy. All the defendants pleaded not guilty; and some of them, the statute of limitations. The heirs of one La Fayette Cleveland, under whom both plaintiff and defendants claim, intervened, asserting their ownership in the land. Upon the trial, which was without a jury, the plaintiff introduced in evidence a copy of a judgment of the district court of Coryall county, rendered October 2, 1880, setting apart to La Fayette Cleveland the land in controversy "in a cause in which said Cleveland and his two brothers were sole parties," and proved that La Fayette Cleveland died in December, 1878, intestate, leaving surviving him his widow, Ava Cleveland, and his sons, Henry Cleveland, Daniel Cleveland, J. R. Cleveland, and La Fayette Cleveland, Jr., and his daughters, S. C. Campbell, wife of R. W. Campbell, M. C. Russell, wife of D. C. Russell, and Emma Cleveland, who subsequently married John A. Russell. The plaintiff also introduced in evidence deeds to himself dated February 2, 1889, from the widow and all the above-named heirs of La Fayette Cleveland, except La Fayette Cleveland, Jr.; and, for the purpose of showing the common source of title, they introduced further a power of attorney from La Fayette Cleveland to Wharton Branch, empowering the latter to convey the land, dated August 12, 1886, together with deeds executed by Branch, as such attorney, in the year 1882, conveying the lands to defendants, or to those under whom they claim. The defendants then introduced in evidence the patent from the state, issued in 1852, to Mary Hawley, for the land in controversy, and a deed from Mary Hawley, dated January 15, 1859, to one John Morgan, to the same land. The defendants there rested, except as to the issues of the statute of limitations and improvements in good faith. The interveners, it seems, offered no evidence.

The trial court held that neither the plaintiff nor the interveners were entitled to recover, and gave judgment for the defendants. The court of civil appeals (24 S. W. 1099) affirmed that judgment, basing their conclusions upon the ground that the defendants, by proving that land had been patented to Mary Hawley, and had been by her transferred to Morgan, had shown a complete defense to the action. In this ruling we do not concur. The rule as to the common source is that when the plaintiff has proved that he and the defendant claim title to land from a common source, and that, of the two titles emanating from that source, his is the superior, he shows a prima facie right to recover; and it may be conceded that it is a rule of evidence, and not of estoppel. Howard v. Masterson, 77 Tex. 41, 13 S. W. 635. Notwithstanding the proof of the insufficiency of his title under the common source, the defendant may still defeat the action by showing that there is a title superior to that of the person or persons under...