Slattery v. Adams

• Decision Date: 18 November 1954
• Docket Number: No. 4884,4884
• Parties: Anna SLATTERY et al., Appellants, v. Nell B. ADAMS et al., Appellees.
• Court: Texas Court of Appeals

Page 445

279 S.W.2d 445

Anna SLATTERY et al., Appellants, v. Nell B. ADAMS et al., Appellees.

No. 4884.

Court of Civil Appeals of Texas, Beaumont.

Nov. 18, 1954.

Rehearing Denied April 20, 1955.

Orgain, Bell & Tucker, Beaumont, for appellants.

Bradford Pickett, Frank K. Dougharty, Hightower & Wheat, C. B. Cain, Liberty, for appellees.

WALKER, Justice.

The action is in trespass to try title, to recover one of the three Conrad Eigeneaur Surveys in Liberty County, being Abstract No. 186, Patent No. 559, Volume 15, less, however, 160 acres in the southwest corner of this survey which was formerly occupied and claimed by Nevil Doucette. The defendants also plead a cross-action in trespass to try title for the same land.

The cause was tried to the court with a jury, and the court instructed the jury to return a verdict for the plaintiffs and some persons who were cross-defendants, and then rendered judgment awarding the plaintiffs and said cross-defendants the title to and possession of the land in suit and denying the defendants any relief on their crossaction. From this judgment the defendants have appealed.

The appellees are referred to hereinafter as the plaintiffs, although, as stated, some of them were cross-defendants.

The survey in suit was patented to the heirs of Conrad Eigeneaur, deceased, on June 30, 1862, by virtue of Certificate No. 555, which was issued to the said heirs by the Board of Land Commissioners of Harrisburg County on June 7, 1838. Plaintiffs claim to have acquired the title of the aforesaid heirs in several different ways. The defendants contend that the plaintiffs failed to prove title and also claim that they, the said defendants, have acquired the title for themselves. It is unnecessary at this point to identify the plaintiffs or to state their claims of title. The defendants on trial, and the appellants here, are Anna Slattery and Nora Slattery, daughters of Thomas and Kate Slattery. The parents of the defendants died before this suit was filed. Some of the claims asserted by defendants devolved upon them by inheritance from their parents, in part directly and in part through their sister, Mayme Slattery, who died after this suit was filed; but they also claim title under their own adverse possession and that of their sister Mayme.

Opinion

Among other claims, plaintiffs assert title under a group of persons who, themselves, claimed that a series of inheritances had vested them with the title of a person who, they said, was the sole heir of Conrad Eigenauer, and plaintiffs identify Conrad Eigenauer with Conrad Eigeneaur. According to these people, Conrad Eigenauer's real name was Conrad Eichenauer and his brother was his heir. The brother's name was said to be Christoph Eichenauer and his title was said to have been inherited by his wife and from her, by the group of people mentioned. This group, or a large number of them, gave W. Von Rosenberg a power of attorney which is in evidence, and Von Rosenberg, acting as agent for these and others, had a transaction with one Johnson involving a deed to and contract with Johnson, and later on he had a transaction with a Wm. Fuchs, and plaintiffs proved a chain of instruments which, they say, runs back to these transactions of Von Rosenberg's and vests them with the title of Von Rosenberg's principals, both those named in the power of attorney and in his deed to Johnson.

Points 1, 2, 3 and 4 attack the evidence which the plaintiffs rely on to prove this claim as to the identity of Conrad Eigeneaur's heirs. It is plaintiffs' contention that recitations in ancient instruments and in recorded papers, together with circumstances in evidence, proved this identity as a matter of law, but they also invoke the doctrine of idem sonans. The defendants argue to the contrary, saying first that the doctrine of idem sonans is not applicable and that the evidence does not support the claim of heirship made by plaintiffs, and next, that if there is evidence to that effect it only made an issue for the jury.

We note that plaintiffs have made some use of the power of attorney dated April 10, 1902 from Fredrich Carl Fuchs, et al., to J. V. Tackaberry. This instrument was excluded by the trial court, and is not in evidence and so has no bearing on these points.

Questions first to be considered pertain to the materiality, competency and effect of some of the evidence relevant to these points of error.

Adolphus Sterne, as administrator of Conrad Eigenauer, stated in his report of September 24, 1849, that he had 'written at various times to the supposed relatives of said Eigenauer who are either in Wurtemburg, or the Dutchy of Nassau in Germany, representing said estate, but never received an answer; that within the last four months your deponent has laid the matter before the Consul General of Wurtemburg, residing at Baltimore, for the purpose of ascertaining who are the heirs of said Eigenauer and to know what disposition they may wish to make of the property now in the hands of your deponent.' It is our conclusion, stated in our supplemental findings, that Sterne's decedent was the colonist named in the basic certificate.

But what does the statement prove? Regardless of the competency of this statement as evidence, it shows: Directly, only that Sterne had written to certain persons and had received no answer and that he had requested an officer to find out who were the heirs. Impliedly, that he did not know who the heirs were and further, that persons whom he supposed to be relatives of the decedent lived in certain German principalities. Sterne's supposition is not evidence. Can it be implied that the decedent was himself a German? The statement suggests that Sterne had been informed that his decedent's heirs were Germans, and of course his report reflects somebody's declarations; and his information was enough to cause Sterne to initiate a search. However, the source and nature of Sterne's information and these declarations are not otherwise apparent. If competent, the statement quoted is only direct evidence of what Sterne did.

The recitations concerning pedigree, showing of heirship and related matters, which appear in the power of attorney from Margarethe Laemmer, et al., to Von Rosenberg were not competent under Article 3597a, Vernon's Ann.Civ.Tex.St., because this statute applied only to instruments recorded in the deed records of the county in which the land in suit is situated and Von Rosenberg's power of attorney was recorded in a different record of that county, namely, the power of attorney records.

The recital in Von Rosenberg's deed, as agent, to Johnson that the grantors were 'the heirs of Conrad Eigenauer, deceased', was not competent under Article 3597a, for a different reason. This statute makes admissible 'the statement of facts concerning any family history and showing who were the legal heirs of any deceased person', and the statement in the deed is a conclusion, not a statement of fact. The recitals in Von Rosenberg's power of attorney, which had been given to him by most of the grantors named in his deed, show how much of a conclusion this statement of heirship contained in the deed really was and, incidentally, how much of a conclusion such a statement in a recorded paper can be. According to these recitals the name of the decedent in the power of attorney was similar to that of Sterne's decedent but the spelling was slightly different (Eiche-instead of Eige) and none of the principals named in the power of attorney was related to the decedent named therein. Their claim was at the bottom of an extended chain, running from decedent to his brother and from this man to his widow and from this woman to these principals. This declaration may, perhaps, be distinguished from that in Gramm v. Coffield, Tex.Civ.App., 116 S.W.2d 1089, where names were similar and there was a declaration of blood relationship. We have referred to the record in Sun Pipe Line Co. v. Wood, Tex.Civ.App., 129 S.W.2d 704, and that case is not in point on the facts. We have found no other decision pertaining to the form of declaration admissible under Article, 3597a.

The recitals in the power of attorney and in the deed were not competent as statements of pedigree within that exception to the hearsay rule because it appears from these recitals that descent had been cast before the recitals were made and that the recitals were self-serving. Byers v. Wallace, 87 Tex. 503, 28 S.W. 1056, 29 S.W. 760; McCormick & Ray, Sec. 601.

The recitals in the power of attorney and in the deed also were not competent as statements in ancient documents within the exception to the hearsay rule discussed in Sections 612 to 617, inclusive, of McCormick & Ray, at least without confirmatory circumstances. To hold otherwise would be inconsistent with the policy which is expressed in the rule cited immediately above which excludes declarations of pedigree after descent has been cast on the declarant, and it is to be noted in connection with this that statements of pedigree are not admissible within the pedigree exception to the hearsay rule until the declarant has become unavailable. See: McCormick & Ray, Sec. 599. It would seem, then, that such a self-serving declaration ought not to be admitted as an ancient statement without confirmatory circumstances merely because it is thirty or more years old instead of less, and it has been so held. McCoy v. Pease, 17 Tex.Civ.App. 303, 42 S.W. 659. The language in Watkins v. Smith, 91 Tex. 589, at page 591, 45 S.W. 560, and in Maxson v. Jennings, 48 S.W. 781, at page 785, indicates a similar conclusion. Compare Ardion v. Cobb, Tex.Civ.App., 136 S.W. 271, a later decision by the Court of Civil Appeals which decided McCoy v. Pease. Our conclusion is not inconsistent with decisions such as Howard v. Russell, 75 Tex. 171, at page 177, 12 S.W. 525, and Wiener v. Zweib, Tex.Civ.App., 128 S.W. 699, affirmed at 105 Tex. 262, 141 S.W. 771, ...