Terrell v. Martin

• Decision Date: 05 May 1885
• Docket Number: Case No. 5663.
• Parties: J. C. TERRELL v. SIDNEY MARTIN.
• Court: Texas Supreme Court

64 Tex. 121

J. C. TERRELL

v.SIDNEY MARTIN.

Case No. 5663.

Supreme Court of Texas.

May 5, 1885.

APPEAL from Tarrant. Tried below before the Hon. M. D. Priest, Special Judge.

Sidney Martin, appellee, filed a petition in trespass to try title against the appellant, on the 29th day of March, 1884, for a lot in the city of Fort Worth, described in the petition as follows: “Situated in the city of Fort Worth, and known and designated on the map of said city as lot No. 3, in block No. 29, bounded as follows: Beginning at a point in west line of Elm street, one hundred feet northward from the southeast corner of said block No. 29, thence northward with Elm street fifty feet, thence westward parallel with Second street one hundred feet, thence southward parallel with Elm street fifty feet, thence eastward parallel with Second street one hundred feet, to the place of beginning.”

The answer of the defendant consisted of a general demurrer, general denial, plea of not guilty, and plea of five years' limitation.

Verdict as follows: “We, the jury, find the plaintiff entitled to the property and $60 for rent. S. M. FRY, Foreman.” Judgment was entered against the defendant for said premises and $60.

Plaintiff read in evidence a deed from J. P. Smith and M. J. Brinson, administrators of M. T. Johnson and Vienna Johnson, deceased, to Sam Evans, in which it was recited that Smith and Brinson were the duly and legally constituted administrators of M. T. and Vienna Johnson, deceased, and by virtue of an order granted to them as administrators, on the 24th of January last, by the county court of said county, sitting for probate and other like purposes, to sell certain items of property belonging to the community estate of said decedents, to wit: Item No. 49, being known as block No. 29, situated between and bounded by Weatherford and Second streets and Pecan and Elm streets,” and further describing the sale, after advertising, etc., and purchase by Sam Evans, further recited that said sale was duly returned, received, recognized, investigated and confirmed by said probate court.

Defendant's counsel objected to the introduction of the deed in evidence, because it had not been proved by plaintiff that the administrators,Smith and Brinson, had any authority to make sale and conveyance, nor had plaintiff proved any order of sale.

Plaintiff offered to read in evidence a deed from Sam Schwing and wife to W. D. Belding, which contained among other things the following description of a lot, pointed out by plaintiff's counsel as the description of the lot in controversy, after reciting in the premises that the said Schwing and wife do bargain, sell and convey to the said Belding the following described tracts, lots or parcels of land situated in the city of Fort Worth, Tarrant county, Texas: “Another lot situated in block 29, beginning one hundred feet from the southeast corner, thence running north with Elm street fifty feet, and back towards Pecan street one hundred feet, containing five thousand square feet.”

Defendant objected to the introduction of the deed in evidence on the ground that it was irrelevant, and because the description above set out, as the one pointed out by plaintiff's attorney as a description of the lot in controversy, was void for uncertainty and vagueness, and that therefore said deed was void and of no effect as a conveyance of the lot, which objection of the defendant was overruled by the court.

Defendant offered in evidence a deed from A. M. Carter to J. C. Terrell, dated August 4, 1879, conveying to J. C. Terrell his (Carter's) one-half interest in lot 3, block 29, Fort Worth, Texas.

The plaintiff objected to the introduction of said deed in evidence by defendant on the ground that a less period than five years had elapsed between the execution and registration of said deed and the filing of plaintiff's petition, and that defendant had not shown that A. M. Carter had any interest in said land, or that there was any deed on record to said Carter, or any title to said lot or any interest deraigned to said Carter, which objections of the plaintiff to the reading of said deed in evidence were sustained by the court.

Defendant offered to prove by A. M. Carter that he had paid the taxes on a one-half interest in the lot in controversy for the year 1879, which was objected to by the plaintiff on the ground that there was no deed in evidence showing that said Carter had ever had any interest in said land, which objection was sustained by the court and defendant excepted.

J. C. Terrell had testified that when he bought the lot in controversy in August, 1878, there was a negro woman in possession of it, living in the house on it. The lot was inclosed by a plank or board fence, and had a small tenement house on it. “The negro attorned to me and acknowledged me as her landlord, and paid rent to me for the month of September, 1878. She remained on the premises, continuing to pay me rent all the time for about three years, and was succeeded by other tenants of mine, who also paid me rents. I have had, through tenants, continued unbroken (except for about three weeks at one time between outgoing and incoming tenants) possession of said property from the latter part of August, 1878, until this time. I have paid all the taxes on a one-half interest in said lot for the year 1879, and all the taxes on the whole of it for the years 1880, 1881, 1882, 1883.” (The defendant produced tax receipts for the taxes paid as above stated from the tax assessor and collector of the city of Fort Worth and from the tax collector of Tarrant county.) Said that he had never recognized any claim or interest of anybody else in the premises except the one-half interest of A. M. Carter, which he bought on the 4th of August, 1879; that from said August 4, 1879, he had recognized no claim or interest of any one else in the premises, but had held the same as his own; that he had from time to time made repairs on said premises.

The court charged the jury, among other things, as follows: “The jury are further instructed that the deed offered in evidence by the defendant is not sufficient to sustain the plea of limitation interposed by him herein, and you need not consider the issue raised by said plea.”

Hyde Jennings, for appellant, cited against the admission of the administrator's deed: Art. 1327, Pasch. Dig. Laws of Texas; Atkins v. Kinnan, 20 Wend., 241; 1 Kent. Com., 466 (3d ed.), note, etc.; Corwin v. Merritt, 3 Barb., 343; Bloom v. Burdick, 7 Hill, 142; Hubbell v. Weldon, Hill & D., 145; Sharp v. Speir, 4 Hill, 86; Sharp v. Johnson, 4 Hill, 9; Bangs v. McIntosh, 23 Barb., 599;Battel v. Torrey, 65 N. Y., 299;Stafford v. Ingersoll, 3 Hill, 41.

On limitation, he cited: Carpenter v. Webster, 27 Cal., 549.

Hogsett & Greene, for appellee, on admissibility of the administrators' deed, cited: Pasch. Dig. of Laws, art. 1327; R. S., art. 2092; Wash. Real Prop., vol. 3, *p. 622, top p. 333; Id., *p. 630, top p. 347.

On the admissibility of the deed as a basis for limitation, they cited: Murphy v. Welder, 58 Tex., 240;Montgomery v. Carlton, 56 Tex., 365;Flanagan v. Boggess, 46 Tex., 335;Whitehead v. Foley, 28 Tex., 293;Acklin v. Paschal, 48 Tex., 175-6.

STAYTON, ASSOCIATE JUSTICE.

The plaintiff sought to deraign title to the lot in controversy through a deed from the administrators of the estate of M. T. Johnson, executed April 1, 1870.

This deed recited the different steps taken in the probate court and by the administrators to make a valid sale of property belonging to the estate of a deceased person, but there was no proof whatever of the application for an order to sell, of the order to sell, of the report of sale, or of a decree confirming the sale.

The deed was objected to, when offered, because no proof had been made that the administrators had authority to make the sale and deed, and this objection was overruled.

It is contended by the appellee that the deed itself, containing, as it did, recitals of the facts necessary to a valid sale, was prima facie evidence that all the requisites to a valid sale existed.

This view of the question is based upon the language of the statute then in force, which is substantially the same as now found in the Revised Statutes. Pasch. Dig., 1237; R. S., 2091, 2092.

The statute declared that, “after any such decree of confirmation shall have been made, upon the purchaser complying with the terms of sale, the executor or administrator shall execute and deliver to him a conveyance of the property so sold, if it were either land or slaves, reciting therein the decree confirming the sale and ordering the conveyance to be made, which conveyance of land or slaves so made shall vest the right and title that the testator or intestate had, in the purchaser, and shall be prima facie evidence that all the requisites of the...