Ryle v. Davidson

• Decision Date: 25 March 1908
• Citation: 116 S.W. 823
• Parties: RYLE et al. v. DAVIDSON et al.
• Court: Texas Court of Appeals

116 S.W. 823

RYLE et al. v. DAVIDSON et al.

Court of Civil Appeals of Texas.

March 25, 1908.

Rehearing Denied February 25, 1909.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

Trespass to try title by Reuben Ryle and others against John Davidson and others. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal. Reversed and rendered.

See 115 S. W. 28, for answer to certified questions.

J. J. O'Fiel and Robertson & Whitaker, for appellants. Greers & Nall, Greer, Minor & Miller, Campbell & McMeans, and A. D. Lipscomb, for appellees.

REESE, J.

Three suits in trespass to try title were instituted in the district court of Jefferson county; the three suits embracing the entire Chireno league. Suit No. 2,959 was by the heirs of John Ryle, seeking to recover 1,628 acres in a square in the southwest corner of the league. Suit No. 2,960 was by W. H. Perrine for 2,000 acres in a square in the northwest corner, and suit No. 2,961 was by the heirs of Jacob Berlin for the remaining 800 acres of the league lying entirely on the east half. The same parties were made defendants in each of the suits. The suits were consolidated on motion of defendants. When called for trial, the plaintiffs in each of the suits moved to sever, which was denied by the court. The plaintiffs in the suit of the heirs of Jacob Berlin dismissed their suit, which involved the land on the east half of the league, and all of the plaintiffs in the other two suits dismissed as to all defendants claiming land on the east half of the league. The remaining defendants disclaimed as to any land lying on the east half, and as to the balance of the land, to wit, the tracts of 1,628 acres and 2,000 acres, respectively, in so far as they lay on the west half of the league, they pleaded not guilty and title by limitation under the statute of limitation of three, five, and ten years. J. R. Lawrence intervened claiming a part of the land under contract with plaintiffs. There was a jury trial resulting in a verdict and judgment for defendants. Motion for new trial was made and overruled, from which plaintiffs appeal. The land lies in Jefferson county, Tex., and is a part of the league of land granted by the state of Coahuila and Texas to Manuel Chireno as a colonist in Zavalla's Colony on May 27, 1835, the title being extended by Jorge Antonio Nixon, special commissioner of the Government. Chireno, original grantee, is common source of title. Plaintiffs claim title under Manuel Chireno as follows: (1) A deed or act of sale from Manuel Chireno to Juan Leplicher, dated September 15, 1835, and duly recorded in the deed records of Jefferson county February 15, 1847. This instrument describes the land conveyed as "one league of land which was conceded to him (i. e., Manuel Chireno) by the honorable special commissioner of the Colony Enterprise of Citizen Lorenzo de Zavala, as is proved by acts of possession which were issued to him as a settler by the Honorable Commissioner Citizen Jorge Antonio Nixon, dated the 28th day of May last past." (2) An act of sale from Juan Leplicher to Daniel Berlin to the Manuel Chireno league, describing it by metes and bounds, dated May 2, 1839. This instrument recites that Leplicher executed the same as agent of Manuel Chireno duly appointed by procuration in possession of the purchaser. (3) A deed from Daniel Berlin to John Ryle, conveying 1,628 acres of the Chireno league in Jefferson county, Tex., to be taken in a square form out of the southwest corner of the league. This deed is dated August 31, 1852, acknowledged before J. W. Baldwin, commissioner of deeds for Texas in New York on September 1, 1852, and was recorded in deed records of Jefferson county, Tex., February 16, 1854. (4) Heirship of plaintiffs to John Ryle. The title of Perrine is the same down to Daniel Berlin. Under Daniel Berlin he claims as follows: Deed from Daniel Berlin to Jacob Berlin for the Chireno league, less the 1,628 acres sold to John Ryle, dated September 1, 1852, and recorded December 22, 1854, in deed records of Jefferson county. Deed from Jacob Berlin and wife to Wm. H. Perrine, dated September 26, 1854, recorded in deed records of Jefferson county December 26, 1854, conveying 2,000 acres out of the northwest corner of the Chireno league. Intervener claims title under a contract and power of attorney from plaintiffs authorizing him to bring and prosecute suit for recovery of the land, and giving him a certain portion of the recovery. Defendants claim title as follows: (1) Grant to Manuel Chireno aforesaid. (2) Deed from Manuel Chireno to Arnold Thouvenin for the Chireno league, dated January 9, 1846, and duly recorded in deed records of Jefferson county June 2, 1846. (3) Power of attorney from the heirs of Thouvenin to Jennings, Lewis & Matthews authorizing them to convey all lands in Texas belonging to said heirs dated May 14, 1892, and duly recorded, together with proof of heirship. (4) Deed from heirs of Thouvenin under foregoing power of attorney to John Broocks and I. D. Polk to the west half of the Manuel Chireno league, dated November 3, 1892, duly recorded. (5) Deed from Broocks and Polk for the north 1,090 acres of the west half of the league, being all of the west half, except 1,000 acres conveyed to Ella Williams, to Greer, Ward & Co., dated January 9, 1893, and duly recorded. (6) Deed from Greer, Ward & Co. to Martha Williams for the same land, dated February 28, 1893, duly recorded. (7) Deed from Broocks and Polk to Ella Williams for the south 1,000 acres of the west half of the league, dated January 9, 1893, duly recorded. (8) Deed from Martha Ann Williams to Ella Williams for one-third interest in the 1,090 acres conveyed to her by Greer, Ward & Co., dated October 31, 1901. (9) Deed from Ella Williams to Martha Ann Williams to one-third interest in the 1,000 acres conveyed to her by Broocks and Polk, dated October 21, 1901, and duly recorded. (10) Deed from Martha Ann Williams to Lizzie Williams for 400 acres undivided in the 1,090 acres, dated October 16, 1895, and duly recorded. (11) Deed from Ella Williams to Lizzie Williams for an undivided three-tenths interest, or an undivided 300 acres in the 1,000 acres, dated October 16, 1895. These last-named parties were three sisters, and the deeds conveyed to them the Thouvenin title to all of the west half of the Chireno league which they claim as defendants herein. Plaintiffs and intervener submitted to the court a charge instructing the jury that the evidence furnished by the deeds in their chain of title, reciting the same, showed a complete and perfect title in them to the respective portions of the western half of the league claimed by them, respectively; that the defendants claim under a junior deed from Manuel Chireno to Arnold Thouvenin; that the evidence fails to show that Thouvenin was an innocent purchaser for value without notice of the elder deed, and to return a verdict for plaintiffs and intervener. This charge was refused, and the refusal is made the basis of the first assignment of error. The various questions presented by this assignment are, we think, decisive of this appeal, and of the case. We have set out the chain of title of all the parties. The various instruments in appellants' chain of title were established by evidence which was not objected to. The instruments are before us to determine their legal effect, and to determine whether they, in fact, conveyed title to appellants to the land claimed by them. No objection was made, so far as is presented by this appeal, to the admission in evidence of any of them. Certain objections were presented by appellees as to the legal effect of some of the instruments as introduced in evidence in conveying title to the land claimed which will be disposed of.

Appellees first object that the deed from Chireno to Leplicher does not convey the league of land, part of which is here involved. This objection is based upon the fact that the grant to this league is dated May 27, 1835, while the league conveyed to Leplicher is stated to have been granted May 28, 1835. The description of the land conveyed to Leplicher by the act of sale dated September 15, 1835, is as follows: "One league of land which was conceded to him (i. e., Manuel Chireno) by the honorable special commissioner of the colony enterprise of Citizen Lorenzo De Zavala, as is proved by acts of possession which were issued to him as a settler by the Honorable Commissioner Citizen Jorge Antonio Nixon dated the 28th day of May last past." The grant in question was issued by Jorge Antonio Nixon, special commissioner of Zavalla's Colony, but was dated May 27, 1835. From this difference of dates appellees seek to draw the conclusion either that the deed to Leplicher was made by a different Manuel Chireno from the grantee of this league, or, if made by the same person, it was for a different league of land, and one, in fact, granted to him by Nixon on the 28th of May, 1835. Neither contention is sound. Identity of name is sufficient evidence prima facie of identity of person. Chamblee v. Tarbox, 27 Tex. 144, 84 Am. Dec. 614; Robertson v. Du Bose, 76 Tex. 6, 13 S. W. 300. This has particular force when applied to the particular circumstances of this deed executed when the inhabitants of the country where the deed and grant were executed were a mere handful of people. If the grantor of the league in question was the same person who executed the act of sale to Leplicher, there is no force in the suggestion by appellees that Nixon had extended title to him as a colonist to another league on the 28th of May, which league he intended to convey and did convey to Leplicher. In order to entertain this view, we would have to presume upon the mere difference of one day in date referred to that, in violation of law, Nixon had granted to the colonist two leagues of land, and this without the slightest evidence of such fact,...