Shifflet v. Morelle

• Decision Date: 31 May 1887
• Parties: SHIFFLET and others v. MORELLE and others.
• Court: Texas Supreme Court

4 S.W. 843

SHIFFLET and others v. MORELLE and others.

Supreme Court of Texas.

May 31, 1887.

Appeal from Runnels county.

J. G. Abney, Willingham & Harris, and Hatsook & Patten, for appellants. Robertson & Williams, Mays & Timmins, and C. A. Dailey, for appellees

GAINES, J.

As the pleadings stood in the court below at the time of the trial, this was an action of trespass to try title, brought by Jane C. Shifflet and others, as plaintiffs, against T. L. Odom and C. Morelle and others, as defendants. The plaintiffs claimed the land in controversy under John McCreary, as the alleged assignee of the John Early head-right, by virtue of which the land was patented. Defendant Odom claimed a title to an undivided interest in the land, emanating from the same source. Defendants C. Morelle and others set up title to the entire tract as tenants in common; some of them as heirs of the original grantee of the certificate, and the others as grantees from other of his heirs. There was a verdict and judgment in favor of these latter defendants against plaintiffs, and also against defendant Odom, for the land in controversy, from which the parties cast in this suit have appealed to this court.

The following is the verdict of the jury: "We, the jury, finding no transfers, written or verbal, of the John Early league and labor certificate No. 331, located in Runnels county, Texas, find for C. Morelle, Robertson, and others, defendants, heirs of John Early; and that the locative interest of one-third of the John Early league and labor certificate, claimed by T. L. Odom and others, is barred by lapse of time."

Assuming that this is a special verdict, appellant Odom, in his fourteenth assignment of error, complains that the court erred in not granting a new trial upon the ground the jury found special issues without any instructions from the court to that effect. But we think the assignment is based upon a misconception of the nature of the verdict. A verdict is general which finds in general terms in favor of one party or the other, although special facts may be stated as the grounds of the jury's conclusion. Lawson v. Hilgenberg, 77 Ind. 221. Our statute defines a special verdict as "one wherein the jury find the facts only on issues made up and submitted to them under the direction of the court." Rev. St. art. 1330. In Caldwell v. Brown, 43 Tex. 216, a general verdict awarding damages in favor of the plaintiffs, and showing specifically for what the damages were allowed, was recognized as valid; and the court looked to the special finding, and determined therefrom that the defendant was not prejudiced by any erroneous charge authorizing the jury to find damages not claimed in the petition, because it appeared from the verdict that only such damages as were claimed had been given. The court, therefore, did not err in refusing to set aside the verdict upon the ground set forth in the motion for a new trial, and urged in the assignment of error under consideration. The verdict must be treated as a good finding, not only in favor of appellees generally, but also of the facts stated as the grounds upon which that finding is based. It is apparent, from the issues made in the case, that, if there was no transfer by John Early of his head-right, neither plaintiffs nor defendant Odom had any title to the land in controversy. It was vested in the heirs of the original grantee who had not conveyed their interests, and the assigns of such of them as had so conveyed. If, therefore, there was no error in the proceedings of the court below, in so far as they affected the question of such transfer, the finding of the jury upon that question is conclusive of the title in favor of appellees, and the judgment must be sustained.

The first and second assignments of error by appellants Shifflet and others, and the first by appellant Odom, complain of the ruling of the court in excluding certain answers of the witness Besser, given in a deposition read upon the trial. The witness was the administrator of John McCreary's estate. It is sufficient, for the determination of the question, to set out the answers together. Having previously testified that certain papers which came to his possession as such administrator had been accidentally burned, he was asked to describe them, and state their contents. He answered: "Can only state the substance from recollection. In investigating the papers left by John McCreary, some of them I deemed insufficient. Those I abandoned. Those which I considered had the evidence of title in him I placed as good; among which so placed were the papers pertaining to the John Early league and labor of land." This was excluded. Testifying concerning the papers before mentioned, in answer to other interrogatories, the witness said: "They were papers to which the names of Steele, also Hood, were affixed; also, I think, one signed by John Early. Of the last I will not be positive." The witness then continued: "They were all of that character of papers in that day by which title to land was passed, and, from a perusal of the same, I considered that they vested a good title to said league and labor in John McCreary." The last part of this answer was also excluded.

There was no error in the exclusion of either answer. It is true, the predicate had been laid for the introduction of secondary evidence to prove the execution of the lost instruments and their contents. Appellants had the right to establish them by any witness who knew the facts to which he was called upon to testify; but this did not open the door for proof of the instruments by the mere opinion of a witness who had given them a cursory examination, and concluded therefrom that they showed title in McCreary. With certain well-defined exceptions, the rule is that witnesses must state facts, and not opinions. Appellants contend that the long lapse of time makes this an exception to the general rule; but they have cited no authority to sustain such a proposition, and we are satisfied that none exists. If the witness had recollected the contents of the papers, he certainly could not have stated his conclusion as to their legal effect. This was the function of the court. For a much stronger reason he should not have been permitted to state his conclusion when, if he had ever known the contents, he failed to recollect them. The evidence was clearly inadmissible. Rosenthal v. Middlebrook, 63 Tex. 335; Purnell v. Gandy, 46 Tex. 199; Railroad Co. v. McGehee, 49 Tex. 489; Clardy v. Callicoate, 24 Tex. 172.

Appellants offered in evidence certified copies from the record of Washington county of a bond for title from John Early to W. H. Steele for the obligor's right to a league and labor of land; of a power of attorney from Early to Steele and others, authorizing them to locate the land, and to convey it; and a bond for title from Steele and another to the same right to John McCreary. The records are all made in 1837. The copies were severally excluded, and exceptions taken by appellants. Appellants' third, fourth, and fifth assignments of error are based upon the action of the court in excluding these instruments, respectively. The right to introduce in evidence certified copies of recorded instruments is purely statutory; and the statute applies only to such conveyances as are "permitted or required by law to be recorded." Rev. St. art. 2257. At the time the instruments in question were copied upon the records, the certificate for the John Early head-right had not issued. It was many years before it was located; and, when located, it...