Stramler v. Coe

• Decision Date: 01 January 1855
• Citation: 15 Tex. 211
• Parties: ROBERT STRAMLER v. ELIZABETH COE, ADM'X.
• Court: Texas Supreme Court

15 Tex. 211

ROBERT STRAMLER

v.ELIZABETH COE, ADM'X.

Supreme Court of Texas.

1855.

A sufficient answer to the assigned error, in admitting the testimony of Hensley and Clemons, is, that the evidence was received without objection, and consequently could not now be the subject of exception. But there was in fact no error in admitting the evidence; for where no consideration is expressed in a deed, the true one may be proved.

Where the plaintiff in an action of trespass to try title offered in evidence a certified copy of a bond for title, dated September 17, 1835, witnessed by three subscribing witnesses, one of whom made his mark, and it appeared from the certificate of authentication for record, which was dated 28th of September, 1845, that the witness who had made his mark made oath that day before the officer, that “to the best of his knowledge and belief, he signed the same as a witness, and that James Price (the obligor) acknowledged that he signed it for the purposes therein expressed,” on objection by the defendant, that the bond was not sufficiently authenticated to entitle it to be recorded, it was held sufficient, especially under the act of February 5, 1841. (Hart. Dig. p. 839.)

It seems that excessive or capricious donations and sales, made by the husband with the intent to defraud the wife, would be void; and she would be entitled to her action against the property of her husband and against third persons.

Where the husband, for a consideration received at the time, gave a bond for title to a part of his headright league, in 1835, and his wife died in 1851 (no administration appearing to have been taken out on her estate), and the husband in 1853 made a conveyance in pursuance of the bond, this court said the circumstances were not such, at the death of the wife, as would have defeated a prayer for specific performance; but, whether they were or not, they were certainly not such as would deprive the head of the community, who had made the contract, from the right of carrying it into execution by his voluntary act; and held accordingly.

Where the husband gave a bond for title to community property, in which the consideration was not expressed, and, after the death of the wife, made a conveyance of the same land to the executrix of the obligee in the bond, and the conveyance made no allusion to the bond for title, but recited the receipt of a certain sum of money as the consideration thereof, it was held that the presumption was that the conveyance was made in discharge of the bond.

Appeal from Washington. Action of trespass to try title, by Elizabeth Coe, executrix of P. H. Coe, against Reuben Stramler.

The plaintiff gave in evidence a certified copy of a bond for title from James Price to P. H. Coe, dated September 17, 1835, for the land in controversy. The bond did not recite any consideration; was witnessed by three witnesses; was proved for record on the 28th of September, 1845, by one of the subscribing witnesses, who had made his mark, the certificate being that the witness “made oath to the best of his knowledge and belief, he signed the same as a witness, and that James Price acknowledged that he signed it for the purposes therein expressed.” To the introduction of said bond the defendant excepted, as stated in the opinion. She then gave in evidence a deed from James Price to herself, as executrix of P. H. Coe, dated May 6, 1853, purporting to be in consideration of $2,500, for the land in controversy. She also proved by two witnesses, Hensley and Clemons, that the consideration of the bond from Price to Coe was a tract of land, which had been conveyed by Coe, at Price's request, to a person to whom the latter had sold it. It was admitted that Price had received a valid grant from the government for a league of land, including the land in controversy.

Defendant gave in evidence a conveyance from certain persons who were admitted to be the heirs of Mrs. Price, wife of James Price, dated September 29, 1853. He proved that Price and his wife moved on the land in controversy in 1847, 1848 or 1849, and that they resided there until 1851, when Mrs. Price died; she claimed the land as her homestead; the heirs went on the land in January, 1851.

It was apparent from all the testimony, although not definitely stated, that the league of land was the headright of James Price, received by him as the head of a family, which consisted of himself, his wife (the mother of the defendant's vendors), and their children then living.

The instructions were favorable to the defendant. Verdict and judgment for the plaintiff for all the land. Motion for new trial overruled.

J. E. Shepard, for appellant.

Lewis & Barber, for appellee.

HEMPHILL, CH. J.

A sufficient answer to the assigned error, in admitting the testimony of Hensley and Clemons, is, that the evidence was received without objection, and consequently could not now be the subject of exception. But there was in fact no error in admitting the evidence; for, where no consideration is expressed in a deed, the true one may be proved. (Cowen & Hill's Notes, part 2d, n. 289, referring to 1 Penn. 486;15 Mass. 85, etc.)

The second assignment is, that the court erred in permitting the bond of James Price to P. H. Coe to be read in evidence. On the trial, a copy of this bond was offered and received, and the objections to its admission, as expressed in a bill of exceptions, were: 1st. That it was not properly authenticated, to entitle it to be recorded. 2d. That no connection was shown to exist between the deed of James Price to Mrs. E. Coe and the bond.

The first question is, whether the bond was sufficiently proved to admit it to record. The bond was recorded in 1845, when the provisions on the subject of registry, to be found in the act of limitations of 1841, were in force; and by these, any deed, instrument, etc., was entitled to registration, when proved by a subscribing witness, without specification of the fact which the subscribing witness should prove, or whether the evidence of the witness should be positive, or, as in this case, to the best of his knowledge and belief. More than ten years had elapsed from the execution of the bond, and greater certainty in the proof could not reasonably have been required. Had the original bond been offered at the...