Simmons v. Hewitt

• Decision Date: 13 April 1905
• Parties: SIMMONS et al. v. HEWITT et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

87 S.W. 188

SIMMONS et al. v. HEWITT et al.^*

Court of Civil Appeals of Texas.

April 13, 1905.

Appeal from District Court, Galveston County; Frank M. Spencer, Judge.

Action by Lucy D. Simmons and others against Thomas B. Hewitt and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

John C. Walker, for appellants. Terry, Cavin & Mills, for appellees.

GILL, J.

This action was brought by appellants in trespass to try title to recover of defendants certain land situated on Galveston Island. The defendants pleaded not guilty, and, setting up title in themselves, prayed for the cancellation and removal of appellants' claim as a cloud upon defendants' title. A trial before the court without a jury resulted in a judgment for defendants, as prayed for, and the plaintiffs have appealed.

The facts are as follows: Under an act of Congress of the republic of Texas, Galveston Island was divided into lots of from 10 to 40 acres each. The work was done by Trimble and Lindsey in 1837, and is represented by a map made by them, and which bears their name. Some of these lots were sold by the government, according to the map, at a public auction in Houston, Tex. Afterwards, on November 28, 1840, a patent was issued to Edward Hall and Levi Jones, passing to them all the lands on Galveston Island, except the city league and the lots previously sold. This grant was confirmed by legislative act. Subsequently, in a partition had between Hall and Jones, they divided the land into sections 1 and 2; differing in area from the divisions made by Trimble and Lindsey, but preserving the number of the lots. By this partition the lots in controversy, among others, fell to Levi Jones. The title, as evidenced by the deed records, was in him at the time of his death, and plaintiffs are his heirs. On the trial, defendants asserted title under an alleged deed of trust made by Levi Jones and J. S. Sydnor to Oscar Farish and Pryor Bryan, covering the lots in controversy; the deed of trust being made to secure one Emerson in the payment of a debt, followed by a deed by the trustees to J. S. Sydnor in consummation of a sale by them, and conveyances connecting their title with J. S. Sydnor. The originals of these asserted deeds could not be found after diligent search, and no witness was adduced who had ever seen them. All the parties to the transaction died long prior to the trial. Their existence and contents were sought to be established by the following circumstances: (1) It was shown that Oscar Farish was county clerk of Galveston county from its organization until 1869, and it was made to appear without dispute that he was a careful clerk and copyist, and bore the reputation of an honest man. (2) He was an intimate friend of Levi Jones and J. S. Sydnor. (3) In Volume H of the deed records of Galveston county appears a purported record of a deed of trust from Jones and Sydnor to Farish and Bryan, as trustees, covering section 2 of the Hall and Jones partition, to secure a debt to one Emerson. The record is dated June 14, 1847. It is in the handwriting of Farish, the then clerk, as are also properly authenticated and recorded deeds immediately preceding and following. The copy in question is a nullity as a record, because the certificate of acknowledgment which it bears appears to have been taken by Farish himself, one of the trustees in the deed of trust. Book J of the deed records of Galveston county contains what purports to be a record of a deed from the trustees to J. S. Sydnor, conveying the said lands to him in consummation of a sale made by them in pursuance of the deed of trust. The date of this is May 22, 1849, but its record is a nullity for the same reason which rendered void the record of the deed of trust. This record was also shown to be in the handwriting of Farish, who was clerk at that time. In Book H of said county records also appears a purported copy of a release executed by the trustees and by Emerson, releasing to Levi Jones 75 acres of the land covered by the trust deed. This part of the record was also in the handwriting of Farish, but the record was a nullity because it disclosed that he had taken his own acknowledgment. The pages of the record books purporting to contain copies of these instruments were introduced in evidence over objection of plaintiffs, as was also testimony identifying the handwriting as that of Farish. It was shown that Levi Jones for many years after the execution of the alleged instrument had lived on Galveston Island, and was intimately acquainted with Farish and Sydnor, and that he never, after the date of the deed made by Farish to Sydnor, claimed any part...