Savage v. Rhea, 1194-5538.

• Decision Date: 20 December 1930
• Docket Number: No. 1194-5538.,1194-5538.
• Citation: 33 S.W.2d 429
• Parties: SAVAGE et al. v. RHEA.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

33 S.W.2d 429

SAVAGE et al. v. RHEA.^*

No. 1194-5538.

Commission of Appeals of Texas, Section B.

December 20, 1930.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Alice J. Savage and others against C. M. Rhea. A judgment for defendant was affirmed by the Court of Civil Appeals [19 S.W.(2d) 173], and plaintiffs bring error.

Judgments of the district court and Court of Civil Appeals affirmed.

See, also, 33 S.W.(2d) 433.

Kleberg & North, M. G. Eckhardt, Jr., and E. B. Ward, all of Corpus Christi, for plaintiffs in error.

Sidney P. Chandler, of Corpus Christi, for defendant in error.

RYAN, J.

This is a suit in trespass to try title and for damages by plaintiffs in error against defendant in error, filed in the district court of Nueces county, for the recovery of lot No. 8 in block No. 3, Brooklyn Heights addition to the city of Corpus Christi. In addition to the statutory allegations required in trespass to try title actions, plaintiffs below pleaded the statutes of limitation of three, five, ten, and twenty-five years.

The defendant, Rhea, plead not guilty and the statutes of limitation of three, five, ten, and twenty-five years.

Trial was had before the court without a jury, which resulted in a judgment that plaintiffs take nothing by their suit against the defendant, Rhea, and that he recover his costs and execution therefor. This judgment was affirmed on appeal by the honorable Court of Civil Appeals for the Fourth Supreme Judicial District. Bechert v. Rhea, 19 S.W. (2d) 173.

The motion for rehearing in the Court of Civil Appeals alleges only two grounds of error, viz.:

(1) The Court of Civil Appeals erred in not sustaining appellants' first proposition as presented in their brief. This first proposition asserts that the undisputed evidence conclusively shows that appellants and those under whom they claim have a superior title by virtue of actual, peaceable, continuous, and adverse possession of the premises in controversy under the ten-year statute of limitation.

(2) The Court of Civil Appeals erred in not sustaining appellants' second proposition as presented in this brief. This proposition asserts that all the evidence conclusively shows that the plaintiffs have held peaceable, continuous, and adverse possession under title or color of title from and under the sovereignty of the soil, of the premises in controversy, for more than three years prior to the commencement of this suit, and therefore have title to said premises by virtue of the three-year statute of limitation.

The Supreme Court will not review questions not presented to and preserved by motion for rehearing in the Court of Civil Appeals. Rule 1 for the Supreme Court; Knox v. McElroy, 103 Tex. 357, 127 S. W. 798; Collum v. Sanger, 98 Tex. 162, 82 S. W. 459, 83 S. W. 184; Reese v. Lee (Tex. Com. App.) 267 S. W. 671; Boykin v. S. W. Texas Oil & Gas Co. (Tex. Com. App.) 256 S. W. 581; Employers' Casualty Co. v. Roland (Tex. Com. App.) 1 S.W.(2d) 568; Blackmon v. Trail (Tex. Com. App.) 12 S.W.(2d) 967.

We cannot therefore consider any grounds of alleged error other than the two above, although in the application for writ of error there are ten assignments with numerous propositions and references to bills of exception in the transcript which we have been unable to find. For instance, the first assignment specified complains of the admission in evidence of the United States marshal's deed to N. Gussett, "as is shown in Bill of Exception No. 1." The second assignment complains of the admission in evidence of a writ of execution and return, out of the United States Circuit Court for the Eastern District of Texas, in suit styled, J. Temple Doswell v. William Ohler, "as is shown in Bill of Exception No. 2." The third assignment complains of the admission in evidence of a patent from the state of Texas to Levi Jones, assignee of Jose M. Borgas, "as is shown in Bill of Exception No. 4." The fourth assignment complains of the admission in evidence of a tax deed to the Corpus Christi City and Land Company, "as is shown in Bill of Exception No. 5." The fifth assignment complains of the admission in evidence of another tax deed to said Corpus Christi City and Land Company, "as is shown in Bill of Exception No. 6." The seventh assignment complains of the admission in evidence of the inventory and appraisement in the estate of Matilda Ohler, "as is shown in Bill of Exception No. 7."

We have diligently searched the transcript before us; it contains not a single bill of exception above referred to. Under these assignments are briefed propositions, statements, and arguments, alleging conflicts between the holding of the Court of Civil Appeals in this case on such questions of evidence and prior holdings of the Supreme Court and other Courts of Civil Appeals. The Supreme Court granted this writ of error, with the notation: "Granted on the alleged conflicts," evidently assuming from the recitals in the application that the questions were properly raised and were based upon a proper motion for rehearing in the Court of Civil Appeals.

The record does not support the application for writ of error in those respects, and, as those questions are not based on any exception properly reserved, we cannot consider them. 3 Tex. Jur. §§ 154, 157.

The remaining assignments in the application are as follows, viz.: No. 6 complains of the judgment in favor of C. M. Rhea on the ground that he failed to prove title in himself by limitation or by a superior, unbroken chain of record title; No. 10 complains of said judgment on the proposition that all the evidence shows the superior fee-simple record title to the premises in question in plaintiffs in error; No. 8 asserts the proposition that all the evidence conclusively shows that they have title by virtue of the statute of limitation of three years; and No. 9 complains of the trial court's third finding of fact that they do not have the record fee-simple title.

The trial court's second finding of fact, approved by the Court of Civil Appeals, is that the plaintiffs below (plaintiffs in error here) relied upon what is known as the Kinney title, and the defendant, Rhea, relied upon the Kinney title and what is called the Jones title.

The Kinney title originated in the grant of a ten league tract of land, called "Rincon del Oso," from the Governor of the state of Tamaulipas, dated November 16, 1831, to Enrique Villareal, who on July 16, 1842, conveyed one league thereof to H. L. Kinney; afterwards Kinney by deed dated November 24, 1847, acquired from Villareal's widow and heirs the remaining nine leagues. Title in Kinney was confirmed and divested out of Jose Maria Villareal by judgment of the district court of Nueces county on September 20, 1849, and was quitclaimed by said Villareal to Kinney's executors on June 3, 1873. In due course, this Kinney title passed by regular chain to Matilda Ohler by deed from J. W. Zacherie, dated April 26, 1866, conveying 1,500 acres of land in the El Rincon tract, north of Corpus Christi, Tex., in Nueces county. She executed deed to William Headen, dated May 13, 1868, to two certain lots, a part of the Rincon tract; this deed reads in part as follows: "Know all men by these presents, that I, Matilda Ohler, of the County of Nueces and State of Texas, for and in consideration of the sum of $250.00 to me in hand paid by William Headen * * * have granted, sold, aliened and conveyed and by these presents do grant, bargain, sell, alien and convey unto the said William Headen, all those lots, pieces or parcels of land lying and being in the town of Brooklyn * * * and adjoining the City of Corpus Christi * * * towit: Block No. 3, * * * also Water Block No. 3, in front of said Block No. 3. * * * And I, the said Matilda Ohler, for myself and my heirs, executors and administrators do hereby agree and covenant to warrant and forever defend all and singular the above described premises and property, unto the said William Headen and to his heirs and assigns, free from the claims of all persons whomsoever lawfully claiming or to claim the same or any part thereof, under, by or through me." It is signed "Matilda Ohler * * * (Seal)" and "Edward Ohler, by Matilda Ohler, his attorney in fact * * * (Seal)." The certificate of acknowledgment recites she "acknowledged that she had signed and executed the same in her capacity as agent and attorney in fact for Edward Ohler, her husband, and also in her own individual right for the consideration and purposes therein set forth."

It is contended by plaintiffs in error that the conveyance to Matilda Ohler from Zacherie vested title in the community estate of Matilda and her husband, and not in her separate estate, there being nothing in the record to show the contrary (Kin Kaid v. Lee, 54 Tex. Civ. App. 622, 119 S. W. 342), and therefore, the husband having executed such deed by an attorney in fact, the conveyance carried good title into Headen. It is claimed that said deed is admissible in evidence under certain curative acts, on the authority of the case of Kin Kaid v. Lee, 54 Tex. Civ. App. 622, 119 S. W. 342. In that case the court refused to pass on the question of whether the acknowledgment certificate was fatally defective under the law as it existed at the time the deed was recorded, but admitted the deed in evidence by virtue of the Curative Act of 1907, 30th Leg. c. 165, p. 308. However, the same court in Holland v. Votaw, 62 Tex. Civ. App. 91, 130 S. W. 882, held that said act was ineffective to give validity to a recorded deed by a married woman which was void for want of proper acknowledgment. This holding was expressly approved by ...