Stanley v. Epperson

Citation45 Tex. 644
PartiesWILLIAM M. STANLEY ET AL. v. B. H. EPPERSON.
Decision Date01 January 1876
CourtSupreme Court of Texas
OPINION TEXT STARTS HERE

APPEAL from Red River. Tried below before the Hon. John D. Easton.

Suit instituted by Epperson, appellee, against W. M. and F. M. Stanley, to recover a tract of land described in the petition. The action was trespass to try title, in the usual form. W. M. Stanley answered, but F. M. Stanley, though served, filed no answer. Sarah Stanley, the wife of W. M. Stanley, filed a petition, praying to be made a party to the suit, and set up that she was the wife of W. M. Stanley, and that the land was her homestead, and pleaded (though not under oath) non est factum to a deed filed with the papers as the basis of plaintiff's title.

On the trial the following were the facts adduced in evidence: Plaintiff offered in evidence a deed from William M. Stanley and wife for the land described in plaintiff's petition. The deed was in the usual form of warrantee, and described the land sued for.

Donahue, a witness for plaintiff, was introduced, and testified as follows: That he was acquainted with the land described in plaintiff's petition and identified the same, and that William M. Stanley and wife were living upon the land at the time of the institution of this suit. Plaintiff then closed.

Defendant then introduced John A. Bagby, who testified that he was District Court clerk of Red River county, Texas, and was county clerk of said county in 1867 and up to the time he was elected district clerk under the present Constitution; that he was county clerk of said county at the time the acknowledgment to the deed was taken; that it was acknowledged before him by William M. Stanley, and that his official signature and seal of office attached to said deed was genuine and was put there by him; that at the time of taking the acknowledgment and making the certificate the name of Mattie P. Henderson was on the deed as grantee; that after taking the acknowledgment the same was left with him. He could not say whether he was instructed to record the deed, but such was his usual custom; that before said deed was recorded John D. Henderson and William M. Stanley came to him and got the deed, and that he went with them to plaintiff, B. H. Epperson, when the name of Mattie P. Henderson was erased from the deed as grantee, and that of B. H. Epperson inserted in its stead; that this was done in the presence of John D. Henderson, W. M. Stanley, and plaintiff; that he did not recollect whether William M. Stanley assented to the change or not, but knew that no objection was made; that after the change in the deed it was delivered to him in presence of said parties, to wit, J. D. Henderson, William M. Stanley, and B. H. Epperson, to be filed as recorded; that neither Sarah A. Stanley, wife of William M. Stanley, nor Mattie P. Henderson, wife of John D. Henderson, were present when the deed was altered and delivered; that witness did not know whether they consented to it or not. Witness also stated that he never took Mrs. Stanley's acknowledgment to any deed to B. H. Epperson. Here defendant closed.

Plaintiff then introduced one Sims, a witness in rebuttal, who testified that he was present at the time of the alteration of the deed; that John D. Henderson, William M. Stanley, plaintiff, B. H. Epperson, and John A. Bagby were also present, but that neither Mrs. Henderson nor Mrs. Stanley were present; that the alteration was made with the assent of John D. Henderson and the approval of William M. Stanley, and that after the alteration the deed was delivered to John A Bagby, in their presence, to be recorded. This took place at B. H. Epperson's office, and he (the witness) was present at the request of John D. Henderson, who had consulted him about the transaction; that the transaction took place publicly and openly.

Plaintiff B. H. Epperson was then called, and testified in his own behalf as follows: that John D. Henderson was the husband of Mattie P. Henderson, who was, at the time of the alteration of the deed, in the State of Missouri, and had been there for several months previous, and so continued until after the death of her husband, which occurred in September following; that he (plaintiff) purchased the land in controversy from John D. Henderson, the husband of the said Mattie, and paid him $4,200 for it; that when Henderson met him by appointment to make a conveyance of the land, he (Henderson) showed him a deed from Stanley and wife to Mattie P. Henderson, and, when his attention was called to this fact, stated that he had brought William M. Stanley with him to make a new deed, as this one had not been recorded, and asserted that he had paid for the land himself, and not with the separate funds of his wife. William M. Stanley was present, assenting to what he said, and admitted that he had received full payment for the land, and stated that he was willing to make a deed to any one Henderson should designate, whereupon, with the assent of John D. Henderson and William M. Stanley, the name of Mattie P. Henderson, wherever it occurred as grantee in the deed, was erased, and the name of plaintiff was substituted, and that the deed was then stamped and delivered, in the presence of said J. D. Henderson and said William M. Stanley, to John A. Bagby, clerk of the County Court, with a request that it be recorded; that William M. Stanley stated that he was occupying the place as a tenant of John D. Henderson for the current year of 1868, and Henderson admitted that he had been paid rent for that year, and that Stanley was to remain in possession as tenant until the end of that year; that after this transaction, and after the death of John D. Henderson, which occurred in September following, but before the end of the year, William M. Stanley proposed to rent the premises of plaintiff for the next year, which plaintiff declined; that soon after this conversation concerning the rent, plaintiff left the State, and was gone for about a year; when he returned, William M. Stanley claimed title to the land; that the deed was altered upon the day it was marked filed, and that the consideration paid by plaintiff to John D. Henderson for the land was $4,200. Neither Sarah A. Stanley nor Mattie P. Henderson was present at the time the deed was altered; witness did not know whether either of them consented to the alteration or not. Epperson was asked by defendant if he had not seen a deed upon record for this land from Mrs. Mattie P. Henderson, made after the death of her husband, to William M. Stanley and wife. He replied he did not recollect positively whether he had or not; he might have heard there was such a deed, but did not recollect to have seen a record of it.

The first cause of error assigned by appellant for reversal was the refusal of the court below to grant his motion for a continuance upon account of the absence of a witness. The case had been pending nearly three years. An application for a continuance was made on account of the absence of L. D. Henderson, who was not a resident of the county. The affidavit stated that L. D. Henderson was a material witness; that he had been regularly subpœnaed, and that he had been a citizen of Red River county until recently; “that he is now a citizen of Grayson county; that he has important business in this court, and is looked for hourly, and that defendant believes he can procure his testimony by next court.” But the application did not show when he was subpœnaed. It did not state whether he had been subpœnaed whilst residing in Red River county or since he had moved to Grayson. It stated that he had been a citizen of Red River county “until recently,” but did not explain what was meant by “recently.” It also failed to state defendant had used due diligence to procure his testimony.

James H. Clark, for appellants.--If the policy of the law did not forbid such tampering with muniments of title, it still would have been necessary for Mrs. Stanley to have ratified and acknowledged the deed, after the alteration, to give it validity. (26 Tex., 745;30 Tex., 770;29 Tex., 133;25 Tex., 157;25 Tex. Supp., 113;4 Tex., 62;8 Humph., 556;11 Humph., 472;6 McLean, 200;3 J. J. Marsh., 242;6 Dana, 390; 8 B. Monr., 178; 19 N. H., 348; 6 Ham., (Ohio,) 314; 9 Serg. & R., 268; 3 H. & McHenry, 430; 8 Cowen, 75; Coke Litt., 225 b, n. 136; 9 Mass., 307;10 Pick., 105;4 Wend., 475-585; 4 Bac. Abr., 212; 20 Tex., 393; 2 Story Eq., 1204; 16 Tex., 323;24 Tex., 308.)

Does the law warrant the introduction of testimony other and different from that of which the party has given notice by his pleadings?

The object of all pleading, under every system, is to give the opposite party notice of the issue he will be called on to meet. Our action of trespass is no exception to this rule. Our laws of registry, and the statutory requirement of filing the title papers with the clerk and giving three days' notice, supplement the pleadings, and give the opposite party the necessary notice. In this case the notice was given defendants; a certified transcript of the records was filed with the papers of the case and affidavit of the loss of the original. Defendants tendered issue by a special answer, denying the execution of the deed. That issue was accepted by plaintiff, and upon that he went to trial. And it is submitted that that is the only issue shown by the pleadings. If plaintiff did not wish to accept this issue, and did not intend to abide it, he should have confessed, and plead specially the matter of avoidance. As he did not, the law compels him to abide the result of this. (7 Tex., 338;11 Tex., 662;17 Tex., 46.)

Epperson & Maxey, for appellee.--In this case the grantor is trying to avoid a deed made by himself, and to do so upon extreme technical grounds. Neither law nor common sense will permit this. His position assumes that the alteration or change of his original deed, though made with his consent and concurrence, and without fraud,...

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    • 3 Marzo 1926
    ...(Gulf Red Cedar Lumber Co. v. O'Neal, 131 Ala. 117, 90 Am. St. 22, 30 So. 466; Gibbs v. Potter, 166 Ind. 471, 77 N.E. 942; Stanley v. Epperson, 45 Tex. 644; Alexander Hickox, 34 Mo. 496, 86 Am. Dec. 118; Hancock v. Dodd (Tenn.), 36 S.W. 742; Hunt v. Nance, 122 Ky. 274, 92 S.W. 6; United Sta......
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    • 20 Julio 1929
    ... ... 22; Burgess v. Blake, 128 Ala ... 105, 28 So. 963, 86 Am.St.Rep. 78; Gibbs v. Potter, ... 166 Ind. 471, 77 N.E. 942, 9 Ann.Cas. 481; Stanley v ... Epperson, 45 Tex. 644; Jackson v. Jacoby, 9 Cow. (N ... Y.) 125; Alexander v. Hickox, 34 Mo. 496, 86 ... Am.Dec. 118; Hancock v. Dodd ... ...
  • Wagle v. Iowa State Bank
    • United States
    • Iowa Supreme Court
    • 20 Marzo 1916
    ...although done by consent of parties, will not divest the original grantee of title or revest such title in the grantors. Stanley v. Epperson, 45 Tex. 644; Tabor v. Tabor, 136 Mich. 255 (99 N.W. 4); 9 Am. & Eng. Ency. of Law (2d Ed.) 163; United States v. and Heirs of West, 63 U.S. 315, 22 H......
  • Wagle v. Iowa State Bank
    • United States
    • Iowa Supreme Court
    • 20 Marzo 1916
    ...although done by consent of parties, will not divest the original grantee of title or revest such title in the grantors. Stanley v. Epperson, 45 Tex. 644;Tabor v. Tabor, 136 Mich. 255, 99 N. W. 4; 9 Am. & Eng. Ency. of Law (2d Ed.) 163; U. S. v. West, 22 How. 315, 16 L. Ed. 317;Woods v. Hil......
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