Tarpley v. Thomas H. Poage's Adm'r

• Decision Date: 31 December 1847
• Citation: 2 Tex. 139
• Parties: STERLING O. TARPLEY v. THOMAS H. POAGE'S ADM'R
• Court: Texas Supreme Court

2 Tex. 139

STERLING O. TARPLEY

v.THOMAS H. POAGE'S ADM'R

Supreme Court of Texas.

December Term, 1847.

Appeal from Victoria County.

Under the act of 1839, on the subject of the plea of “ non est factum,” it was not necessary that the representative of a succession should swear in the same positive terms with one charged in his own right. His affidavit to the best of his knowledge and belief was a sufficient compliance with the statute. [10 Tex. 367;15 Tex. 297;20 Tex. 209;29 Tex. 282.]

Where the warranties in a deed are equivalent to a covenant of seizin in the vendor, the vendee may, before eviction, prove the failure of the vendor's title, as a valid defense to an action for the recovery of the purchase money. In such case, the vendee cannot be compelled to wait until actual eviction, and then resort to an action on the covenants of the deed for redress, more especially when it appears that the vendor is insolvent.

It is competent for the jury to determine the fact of marriage from evidence of cohabitation, common repute, acknowledgment of the parties, and other circumstances from which the inference of marriage may be drawn.

When the consideration money is paid by one, and the deed taken in the name of another, a resulting trust arises in favor of the former, and the latter must hold the thing purchased for his use and benefit.

This was a suit brought by the appellant, Tarpley, to recover from the administrator of Poage one thousand dollars upon a promissory note, alleged to have been executed by his intestate.

The defendant pleaded the general issue, and specially, that the note was given as the price of one thousand acres of land sold by the plaintiff to Nancy A. Poage, wife of the intestate, by deed with warranty, and that plaintiff had failed to make, and could not make, title to the said land, and that, consequently, the consideration for which said note was given had failed, etc.

The following is, substantially, a statement of the facts as made out and certified by the judge of the district court, to wit:

“On the trial, the plaintiff offered in evidence the note sued on, and proved the presentation of the same to Thomas McConnell, admiuistrator of Poage, within a year after the decease of the intestate, and the refusal to acknowledge it as a debt against the succession. He proved, also, the presentation to Peter U. Pridham, administrator de bonis non, and his refusal to acknowledge it.

The defendant objected to the note being read in evidence to the jury, on the ground that it was dated 4th March, 1840, whereas the note declared on was described in the petition as bearing date the 11th March, 1840. The court, upon inspection of the note, being of opinion, although difficult to determine from obliteration, that the date was 4th and not 11th of March, decided that the plaintiff must either submit to a nonsuit, or by paying the costs and giving the adverse party a term, if desired, continue his case with leave to amend. The plaintiff chose the latter alternative, and the defendant not desiring a term, the amendment was made and the cause proceeded. The defendant then made “a motion in the nature of a demurrer to plaintiff's evidence,' because the plaintiff had failed to prove the signature of the defendant's intestate to the note sued on, which the court overruled, and the defendant excepted. The defendant then offered to introduce testimony in defense, to which the plaintiff objected, and the court overruling the objection, the plaintiff excepted. The defendant then called witnesses. James Ingraham testified to a conversation between the plaintiff and defendant's intestate, in which the former spoke of a note of one thousand dollars which he held on the latter, the purchase money of a tract of land, part of a tract known as Carvajal's tract; the intestate expressed fears about the title; the plaintiff said he thought he could make it good in the year; this conversation witness thinks occurred in the spring of 1841, and Poage died in the summer or fall thereafter. Milton H. Hardy testified that he had heard the plaintiff speak of holding Poage's note for land which he had sold him adjoining the town tract of Victoria, the same or part of the tract known as the Carvajal tract; that Poage made an improvement on the land in the fall of 1839, or early in 1840, and continued to occupy the same except when in town for medical purposes (being in bad health), until August, 1840, when the Comanche Indians took the place, etc.; that Poage never returned to the improvement afterwards. Witness knew Tarpley well, and did not know of his owning any property in the country, except a house and lot in Victoria.

Asbury James testified that he knew Poage well; heard him speak of his intention to purchase a tract of land adjoining the town tract of Victoria, of the plaintiff; that witness advised Poage not to purchase, because he thought that if the land was not Carvajal's, it was Phil. Demitt's, under an older location than Tarpley's; that afterwards Poage told witness that he had purchased and was satisfied, and soon afterwards made an improvement on the land; that the premises were robbed by the Indians in August, 1840, until which time they were occupied by Poage.

Henry Kitchen testified that on several occasions he heard Tarpley say that he held Poage's note for one thousand dollars for land lying above Victoria town tract. Witness told Tarpley he did not think he could collect it, because he could not make a title to the land; Tarpley said that in a year he could make a good title; Tarpley told him in 1842 that he was going to the United States; witness understood he had gone, not having heard of or seen him since.

Daniel McDonald testified that he was sheriff of Victoria county from 1839 to 1842; knew Tarpley well; that he had little or no property; he would not give much for his obligations; does not know that Tarpley has at present any property in Victoria county or the republic; believed he had removed to the United States.

The defendant then offered to give in evidence a deed of conveyance signed by Tarpley, conveying one thousand acres of land to Nancy A. Poage, adjoining the town tract of Victoria, and warranting title against all persons except Carvajal. The plaintiff objected to the reading of the deed in evidence to the jury, inasmuch as it did not appear from the instrument that Nancy A. Poage, to whom it was executed, was the wife of Thomas H. Poage. The court decided that the deed could be read in evidence upon proof that the grantee was the wife of defendant's intestate. The defendant then called witnesses to prove that fact.

James Ingraham testified that Poage was generally reputed to be a married man, and that his wife was in Kentucky, but that he did not know her name personally, or from general reputation; he believed her name to be Nancy, from documents sent to him from Green county, Kentucky. The general representation of Poage's being a married man arose, he thought, from his representing himself as such. He had no wife in this country that witness knew of.

Asbury James had heard Poage speak of his wife's name as Nancy, but did not know it himself personally, or by general reputation.

James Denison testified that he had heard from persons acquainted with Poage and his wife in Kentucky, that her name was Nancy; has been employed by heirs of Poage, and learned that to be her name by communications from her friends on professional business.

A. S. Cunningham testified that he believes it was the impression among some of Poage's intimate friends, that his wife's name was Nancy; does not know it from general reputation. The court ruled that sufficient evidence of the fact that Nancy A. Poage was the wife of Thomas H. Poage had not been adduced to prove the privity alleged in the answer. Defendant then asked leave to read the deed in evidence to the jury, as the consideration for which the note sued on was given, and to prove that the consideration had totally failed, by showing from the county surveyor's records and the testimony of the surveyor himself, that the plaintiff claimed the land for which the deed was given by a location and certificate, and that Philip Demitt had made a prior location upon the same land, with good and valid certificates. The defendant at the same time asking leave to amend his answer generally, and particularly, by striking out, wherever they occurred, the words ‘wife of Thomas H. Poage;’ all of which the court refused, and to which the defendant excepted. The jury returned a verdict for the defendant, and a judgment thereon being rendered, the plaintiff prayed an appeal to the supreme court.”

F. Jones and Robinson, for appellant.

The objection urged on the trial of this cause, that the signature of Poage was not proved without plea under oath, cannot be sustained. A deed inter partes is only available between the parties to it, and it is not competent for a defendant to avail himself of a deed made in favor of a third party, and in which he is not named. Harrison's Dig. vol. 1, 717. But as the defendant failed to produce any proof that Nancy A. Poage was the wife of Thomas H. Poage, the defense wholly failed.

But supposing that the grantee in the deed was the intestate's wife, still the plaintiff would have the right to recover, because, 1st. Poage, in his lifetime, entered into possession of the land; cut timber thereon; improved and lived upon the place, until driven off by the Indians, and in every respect carried out the agreement, and all this with a full knowledge of the character of the claim which he had purchased of Tarpley. Harr. Dig. vol. 3, 1713, 1914, 1907, 1912, and authorities there cited.

2d. Because the covenants, the note and the deed, were independent covenants, upon which each had his remedy. Chit. on Cont. 570; Harr. Dig. 716; 1 Chit. 354; Kent's Com. 472. Being entirely independent covenants, the failure to make title could...