Skov v. Coffin

• Decision Date: 15 February 1911
• Citation: 137 S.W. 450
• Parties: SKOV et al. v. COFFIN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 450

137 S.W. 450

SKOV et al. v. COFFIN.^†

Court of Civil Appeals of Texas. San Antonio.

February 15, 1911.

On Motion for Rehearing, May 17, 1911.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by C. O. Coffin against W. P. Skov and others, and cross-action by defendants. From a judgment for plaintiff, defendants appeal. Reversed and rendered.

Z. L. Cobb and J. M. Nealon, for appellants. Patterson, Buckler & Woodson, for appellee.

FLY, J.

This is an action of trespass to try title to 138 acres of land situated in the town of Socorro, El Paso county, Tex., instituted by appellee against W. P. Skov, S. C. Thomas, Zach Lamar Cobb, the Pennsylvania Company for Insurance on Lives and Granting Annuities, a corporation, Emilia A. Hough, Isaac Hough, Francis A. Thibault, and Carrow Thibault, Jr. The appellants, defendants below, answered by general demurrer, pleas of not guilty and limitations of three, five, and ten years, and further set up a cross-action against appellee, and prayed for judgment for the title and possession of the land in controversy. The court instructed the jury to return a verdict for appellee upon his petition for the land described therein, and also in favor of appellee as against appellants on their cross-action, which was accordingly done, and from the judgment rendered thereon this appeal has been perfected.

In response to a notice given by appellants, appellee filed his abstract of title, in which the land was claimed through mesne conveyances from a deed made by Juan Armendariz, mayor of the town of Socorro, to Moritz Lowenstein, dated November 27, 1886. The ordinance under which the deed was executed was also made a link in the chain. Another link in the title was a trustee's deed made by M. J. Dart, trustee for W. H. Lisles and L. J. Lisles, his wife, but the deed of trust on which it was based was not mentioned in the abstract of title, and no proof of it was offered on the trial.

Appellants claim from John J. Thibault, through a deed made to him in 1854 by Martin Lujan, Justice of the peace, claiming to act for the people of Socorro, together with attached field notes made by S. Archer, surveyor. The next link in the chain of title was a power of attorney from Francis F. Thibault to John J. Thibault, authorizing him "to take care of and conduct and manage" certain property therein described, among the rest "the first tract of land known as survey No. 1, made by S. Archer, in the town of Socorro to John J. Thibault, and by him conveyed to said Francis F. Thibault, by deed bearing date the 22d day of September, 1858, which said tract or parcel of land is more particularly described in record book A, pages 608-9 of the county records of El Paso county, and containing 139 acres, 1045 varas, more or less." It was admitted by appellee that appellants had made due effort to find the deed mentioned in the said power of attorney, and the same could not be found. The will of Francis F. Thibault was introduced, in which it appeared that the corporation sued by appellee had been appointed executor and trustee of the will, with full power to grant, bargain, sell, mortgage, or partition the estate. Conveyances were shown by all the heirs and the executor to Zach Lamar Cobb to one-half of the land, and it was admitted by appellee that Emilia Hough was formerly the wife of Francis F. Thibault, and that she and the Thibaults, sued by appellants, were the only heirs of Francis J. Thibault. It was shown that Skov and S. C. Thomas had sold all their interest in the land to Zach Lamar Cobb. It was shown that appellants were in actual possession of the land. There was proof of action on the part of John J. Thibault under the power of attorney from Francis F. Thibault, evincing a ratification of the same.

As hereinbefore indicated, appellee claims through a deed made by Dart, trustee for Lisles, to Watkins, and the deed of trust under which Dart purported to have acted was not introduced in evidence or its absence in any manner accounted for by appellee. The deed of trust is absolutely essential to perfect appellee's chain of title, and the power to execute the deed is not proved by the recitals in the deed as against those who were not privies to the deed of trust. Watkins v. Smith, 91 Tex. 589, 45 S. W. 560.

It is claimed by appellee, however, that the circumstances are such that a power to execute the deed which is dated in 1893 will be presumed. We fail to discover any such circumstances. Appellee has not been in possession of the land, and there is nothing to indicate that the deed of trust was lost or that it was not easily accessible to appellee. Presumptions must be based on some necessity, and, in the absence of such necessity, they will not be indulged. As said in the leading case of Watrous v. McGrew, 16 Tex. 506: "There would seem much reason to hold that the circumstances amount to prima facie evidence of the genuineness of the power under which the attorney acted in making the mesne conveyance, yet it must be admitted that the power under which the deed is executed should be proved, and its production and proof ought not to be dispensed with, unless under particular circumstances of apparent necessity; as, where from the lapse of time or other causes, there is reason to believe it to have been lost, or that it is not in the power of the party to produce it. If it be not in the power of the plaintiffs now to produce and prove the execution of the power of attorney in the ordinary mode, yet it can scarcely be doubted that by the use of proper diligence they might have obtained some evidence conducing to prove its genuineness." That the deed of trust was easily accessible to appellee is shown in the deed of Dart to J. B. Watkins, wherein it is recited that the deed of trust is recorded in a certain record book on a certain page. It is not pretended that proof of the deed of trust could not have been obtained, and a court will not go into the domain of presumptions, where direct proof can be obtained. No case can be found where presumption has been indulged as to an instrument having been executed, when there is no allegation of loss or destruction, and when the instrument can be proved by the production of the original, a certified copy, or even parol evidence. It may be said in this connection if the circumstances had been such as to demand indulging in presumption, it would have been a presumption of fact to be passed upon by a jury. Dailey v. Starr, 26 Tex. 562.

The burden was upon appellee, as the plaintiff in the case, to establish his title, and it was not incumbent upon appellants to make objections that would cause appellee to supply the missing link in his chain of title.

The recitals in the deed as to the power to execute the deed were not binding upon appellants, whether objected to or not. So far as appellants are concerned, the recitals were absolutely without any effect whatever. They were not privies to the deed, were in no manner connected with it, and were not bound by its recitals. So far as they are concerned, the recitals were not evidence at all. "The general rule in regard to recitals in deeds or other instruments is that they are evidence against the parties executing such deeds or instruments, and those who claim under them, but not in their favor. The admissibility of the recital depends upon the same principles as the admissibility of a declaration of the party executing the instrument. Such recitals, therefore, are in general no evidence against third persons who are strangers to the deed or instrument in which they occur." McKinnon v. Bliss, 21 N. Y. 206.

In the case of Brown v. Goodwin, 75 N. Y. 409, the only evidence of title given by the plaintiff was a deed executed by a United States collector of internal revenue, and the recitals therein and a conveyance from the purchaser to the plaintiff. The Court of Appeals of New York held: "The title, so far as shown, hangs upon a deed from the United States collector of internal revenue in and for the Twenty-Third collection district in the state of New York; and, to be more definite than that, it hangs upon this, whether the recitals in that deed are sufficient prima facie to make out a right in time to sell and convey. * * * We do not think it needful to examine any other grounds claimed by the respondents why the plaintiff cannot maintain her action. It is enough for this appeal that we hold that the recitals in the deed do not make the proof she needs to adduce. Nor is it needful to consider the points made by the appellant as to the inequitable character of the defendants' relation to these premises. Until the plaintiff shows a right to the lands, she shows no right to question any other person's claim to it."

Plaintiff must recover on the strength of his title, and if there is a failure in his proof, it can be taken advantage of at any time during the pending of the suit. If the appellee failed to establish a title to the land, he cannot maintain a recovery on a defective title on the ground that appellants did not make objections in the trial court, which would have drawn his attention to the defects and enabled him to repair them. Appellants are not responsible for the broken links in appellee's title. The case is one of a failure of the proof to sustain the judgment and can be taken advantage of in the appellate court.

Even if appellee had sought to introduce the deed of trust, he could not have done so, because it was not named in the abstract of title. Article 5263, Rev. St. 1895. Appellants claim title through a grant from the town of Socorro to John J. Thibault, which was made in 1854, and is as follows:

"The State of Texas, County of El Paso. I, citizen Martin Lujan, certify in all forms of authority as being Justice of the peace of this Town of Socorro in the year One Thousand Eight Hundred and fifty-four (1854) in the month of August I have given...