Titus v. Johnson

• Decision Date: 01 January 1878
• Citation: 50 Tex. 224
• Parties: PETER W. TITUS ET AL. v. J. H. JOHNSON, ADM'R.
• Court: Texas Supreme Court

50 Tex. 224

PETER W. TITUS ET AL.

v.J. H. JOHNSON, ADM'R.

Supreme Court of Texas.

1878.

APPEAL from Hunt. Tried below before the Hon. Green J. Clark.

November 26, 1875, James H. Johnson, administrator debonis non of the estate of James H. Johnson, deceased, in an amended petition, abandoning all other pleadings, set out his appointment, alleging the facts constituting the title of his intestate to two thousand six hundred and eighteen acres of land, located and patented under an unlocated balance of the headright certificate of M. H. Ragsdale for a league and labor of land; further alleging that the defendants, with notice of the title of his intestate, were setting up a false or fraudulent claim to said premises under deeds from said Ragsdale, and “are trespassing on said land by force and arms, ejecting petitioner therefrom, and greatly slandering the said title of said estate to said land, and cutting down and carrying off great quantities of timber from the land,” &c.

November 26, 1875, defendants pleaded general demurrer and specially excepted, because the petition did not allege (1) that defendants were in possession of the land at the institution of the suit; (2) it was not alleged that plaintiff ever was in possession; (3) because the title set up is only equitable, and it was nowhere alleged that plaintiff ever was in actual possession. Defendants also pleaded not guilty.

Pending the suit defendant Titus died, and his heirs became parties.

July 7, 1877, plaintiff amended, alleging that, since the filing of the suit, defendants had abandoned the land and that plaintiff had regained possession, but that defendants continued to assert their false and fraudulent claim to the land, &c.

July 11, 1877, the exceptions of defendants and their demurrer were overruled.

January 14, 1878, the cause was submitted to a jury upon the following instructions:

“1. The written transfer of the headright certificate of M. H. Ragsdale to James H. Johnson, deceased, dated July 9, 1844, and the instrument dated December 9, 1856, read to the jury in evidence, together with field-notes of the survey of the land upon which said certificate was located and the patent issued thereon, are sufficient evidence in this case to enable the plaintiff to recover against the defendants, unless the jury are satisfied from the evidence that the defendants, or some of them, are purchasers of the land claimed by them respectively in good faith, without notice, actual or constructive, of the claim of plaintiff's intestate.

2. The instrument signed by M. H. Ragsdale, dated December 9, 1856, and recorded July 21, 1868, was constructive notice of the claim of plaintiff's ancestor to the land in controversy to all the defendants who purchased any portion of said land from Ragsdale after the date of such filing.

3. That each and all of the defendants who purchased for a valuable consideration any portion of the land in controversy from Ragsdale prior to the 20th day of July, 1868, without notice of Johnson's claim to said land, are innocent purchasers, and if there are any such the jury should find in favor of such defendant.

4. Defined actual notice. * * *

5. In regard to the payment of the purchase-money for the Ragsdale certificate, the jury are charged that it is immaterial in this action whether Johnson did or did not pay the purchase-money therefor; and the plaintiff's right to recover is not affected thereby.”

On the trial plaintiff offered in evidence a certified copy of a transfer from Ragsdale to Johnson, of date 9th December, 1856, with certificate of acknowledgment and of record. (The instrument is set out in Patterson v. Lowry, 48 Tex., 409, 410.)

To this defendants objected, (1) because W. S. McClure, the officer who took the acknowledgment, held two offices at said time, that of deputy surveyor and notary public of Fannin county; (2) because McClure, the officer, was notary public of Fannin county, and took the acknowledgment in Lamar county; (3) because McClure was, at the time he took said acknowledgment, an interested party, and owned a part of said land as a locative interest; (4) because the transfer proposes to convey certificate number 453, and the patent for the land sued for covers certificate number 454.

In support of these objections the testimony of McClure, by depositions, showed that he resided in Fannin county, Texas, in 1856, and held the offices of deputy surveyor and notary public; that the transfer was made in Lamar county and acknowledged in that county, but certificate was made in Fannin; that he had no direct interest in the transfer, but, under a contract with James H. Johnson, witness located the land for one-fourth interest.

The objections were overruled.

On the trial plaintiff introduced Daniel Upthegrove as witness, and asked him whether he had informed the defendants Long, Fowler, and Halsey of the claim of plaintiff to the land; to which defendants objected, because the communication, if made, was confidential and between attorney and client.

The witness was then examined, (the jury having been withdrawn,) stating that he was an attorney in this cause for the plaintiff; that he was formerly an attorney at law in Paris, Texas, and had known defendants well; that in the spring of 1868, after he had moved to Greenville, defendant Fowler came to the hotel where witness was boarding, and, during a conversation about purchasing land, asked witness “if Ragsdale had any title to the land in controversy”; that witness told Fowler that Johnson's estate had a claim to the land; did not think Ragsdale had any title; witness made no charge, received no fee for what he did, and he did not regard himself as attorney of Fowler; that in the spring of 1873 he had received a letter from defendant Long, asking if Ragsdale had any title to the land in controversy; witness answered that he did not think Ragsdale had any title. Soon afterwards witness saw Long, and they talked said matter over again, and witness gave the same opinion. That on the day of a trust sale under a deed from Ragsdale, under which defendant Halsey claimed and at which he purchased, he asked witness about the title to the land, when witness informed him that Johnson's estate claimed the land, and that witness did not think Ragsdale had any title; that witness wrote the deed for Halsey, but made no charge for advice, and did not consider himself as employed by said parties; Halsey paid witness for writing the deed, and that was the only charge made; witness was at that time a partner of Hardin Hart, and derived his knowledge from Hart & Brown, who had been attorneys for Johnson's estate, and defendants had not communicated to witness any fact concerning the claim of Johnson, but witness had communicated it to them; witness had never investigated the title to the land himself.

Whereupon, and the jury having returned, and over the objections of defendants, it was asked of witness: “Did you or not, prior to the date of Halsey's purchase, impart to him that Johnson claimed the land in controversy?” To which witness replied: “I did.”

“Did you or not impart to J. L. Fowler, prior to 1870, that Johnson claimed the land in controversy?” Ans. “I did, in 1867 or 1868.”

“Did you or not impart to Sam Long the information that Johnson claimed the land in controversy?” Ans. “I did, in the spring of 1873.”

In the progress of the trial, and after the defendants had read in evidence transcript of proceedings in the Probate Court of Red River county, showing the sale of the land by Caldwell, Johnson's administrator, to Rattan and Stevens, the plaintiff read, over objections, a decree of the District Court of Hunt county in the case of Caldwell, adm'r, v. Joseph G. Stevens and others, in which, by consent, a decree was rendered rescinding and cancelling the sale made by the administrator and revesting the land in the estate.

The objections urged to this decree were principally the want of jurisdiction of the District Court to revise in that mode the acts of the County Court, and because Ragsdale and the defendants were not parties and not bound by it.

Plaintiff also, in rebuttal, over objections, proved by Hardin Hart that in the probate sale of the land by Caldwell, administrator, to Rattan and Stevens, the deed was made to Rattan, who seemed to be the head man or acting for the others. (The sale was made in several distinct parcels, the return showing who was the purchaser, but the deed was made to Rattan, and a joint note made for the lots bought by Stevens and Rattan.)

As to other matters of evidence they were not controverted, save in attacking the verdict of the jury. The opinion sufficiently indicates the other parts of the testimony.

The jury found for the plaintiff and the defendants appealed.

The errors assigned and relied on are--

1 and 2. The action of the court in overruling the demurrer and exceptions of defendants.

3. Overruling the objections to the certified copy of the transfer of date December 9, 1856, and objections to the authority of the notary taking acknowledgment, &c.

4. Admitting the testimony of the witness Upthegrove.

5. Admitting, over objections, the decree of the District Court of Hunt county cancelling the sale made by order of the Probate Court.

6. Overruling the objections to testimony of Hardin Hart.

7 and 8. In refusing charges asked and in giving the charges set out above.

9 and 10. In overruling motions for new trial and in arrest of judgment.

E. W. Terhune, for appellants.

I. Every petition, in order to set up a good cause of action, in suit of trespass to try title, must allege that the defendants are in possession of the property sued for.

In this suit there is no definite allegation that the defendants are in possession, or ever were in possession. (Herrington v. Williams, 31 Tex., 460.)

II. In every suit the plaintiff must show a good cause of

action, and in suits for the recovery of lands the pleadings...