Veramendi v. Hutchins

• Decision Date: 01 January 1878
• Parties: M. A. VERAMENDI ET AL. v. W. J. HUTCHINS ET AL.
• Court: Texas Supreme Court

48 Tex. 531

M. A. VERAMENDI ET AL.

v.W. J. HUTCHINS ET AL.

Supreme Court of Texas.

1878.

APPEAL from Colorado. Tried below before the Hon. L. Lindsay.

This was an action of trespass to try title, brought in the District Court of Colorado county, by the heirs of Mrs. James Bowie, to recover one-half of a league of land granted to him during his wife's lifetime, and against J. H. Hutchins, John D. Andrews, John McKennon, J. M. Wolsey, Joseph Took, and ____ Baur, defendants.

Citations were made out for defendants January 24, 1867, which were indorsed issued on same day; but no evidence appears that they ever passed into the hands of the sheriff. April 18, 1867, alias citations were made out and indorsed in same manner, it not appearing that the sheriff ever received them.

May 17, 1871, citations were again issued, which were served on all the defendants, except Took.

June 9, 1871, plaintiffs had leave to make new parties, and August 23 the amendment was filed, making a large number of new parties defendants.

The defendants pleaded not guilty, stale demand, laches, limitation of three, five, and ten years, and suggestion of improvements in good faith.

The grant was made to Bowie on April 20, 1831. He was married in March, 1831, in the old church on the Plaza, in San Antonio, to Ursula Veramendi, daughter of Governor Veramendi. In September, 1833, Mrs. Ursula Bowie died, of cholera, in the city of Monclova, Mexico. Her father and mother died of the same disease--the father first, the mother next; and the day following Mrs. Bowie died.

The heirship of plaintiffs to Mrs. Ursula Bowie was shown by the evidence.

The title papers forming the basis of the title of the defendants are sufficiently described in the opinion.

There was much testimony as to the movements of Colonel Bowie in October, 1835, and of the early history of the occupation of the land sued for, the occupation dating back of 1836, under the title claimed by the defendants.

A question was raised on the admissibility of a certified copy of the bond from Bowie to W. Richardson for the Bowie league.

Andrews, one of the defendants, at a term of court prior to the trial, made affidavit that it was lost or mislaid, and gave notice that a copy from the record would be offered. To the copy, it was objected that the affidavit should have been made on the trial, and should have been made by all of the defendants.

The plaintiffs also sought, by their pleadings, to throw suspicion upon the record, by alleging that the record had been tampered with and altered. The objections were overruled and the copy admitted.

The testimony showed that Hutchins and Andrews had contracted with W. T. Townsend that he should occupy and hold possession of two-thirds of said league, claimed by them, for five years; and that, under the contract, Townsend did hold and occupy the same for five years, beginning in 1856 and ending in 1861. The written contract was not recorded, and was produced in evidence. The plaintiffs excepted to the testimony as in fraud of the law.

Many defendants were purchasers after the filing of the suit in 1867, and before their vendors were made parties or were served with process.

The charge of the court is sufficiently given in the opinion.

The jury found for the defendants, and the plaintiffs appealed.

John T. Harcourt, for appellants.--* * * The next error complained of in the bill of exceptions relates to the affidavit of the loss of the original bond from James Bowie to William Richardson, because it was only made by one defendant, John D. Andrews, and had been made more than a year previous to the trial.

The record books are only copies, and are not admissible without a compliance with the statute, accounting for the non-production of the originals. (Styles v. Gray, 10 Tex., 503;Peck v. Clark, 18 Tex., 240.)

This question is fully settled in the case of Younge v. Gilbeau, 3 Wall., 641. The court say: “The affidavits of its loss only negatived, upon information and belief, its possession by some of the defendants. Its possession by some of them was consistent with every averment made. The defendants relied alone upon the copy from the record, and the court erroneously held that such copy was sufficient.” (Paschal's Dig., art. 3716.)

The affidavit should have been made upon the day of trial, and by both Hutchins and Andrews.

“There ought to be a strict compliance with the statute, it being in derogation of the common-law rule of evidence.” (Crayton v. Munger, 11 Tex., 234;Butler v. Dunagan, 19 Tex., 566.)

We now invite attention to the instructions asked by the plaintiffs, and refused by the court:

1. “The jury are instructed, that, upon the death of Mrs. Ursula Bowie, one undivided half of the league of land was vested immediately in her heirs, and could not have been legally sold by James Bowie, unless in payment of community debts.

2. The purchaser of the whole league from James Bowie, after the death of his wife, would take subject to the descent cast upon the heirs of the wife, and said purchaser would hold the one-half of said league of land in trust for the heirs of said wife, and all subsequent purchasers would be affected by said trust.

3. You are charged that the title bond alleged to have been executed by James Bowie to William Richardson on the 15th of October, 1835, was an executory contract for the sale of the said league of land, and did not have the effect to pass the legal title. It was, at most, only an equitable title to the league, and the vendee, Richardson, had ten years from the date of said bond within which to perfect his title, by a suit on the bond for specific performance; and having failed to show such a title, all the parties claiming under Richardson have no legal title as his vendees, and are now barred by the lapse of time from enforcing their title bond.

4. Upon the death of Mrs. Bowie, her surviving husband, James Bowie, held an undivided half of the said league in trust for the heirs of his deceased wife, and any sale to Richardson, after her death, would be affected by said trust; and the vendee, taking the title with the knowledge of the trust, would be charged with holding the same in trust for the heirs of the deceased wife.

5. No limitation or lapse of time would run against or bar the claim of the heirs of the deceased wife, until the purchasers from Bowie had openly and notoriously repudiated the said trust, by an adverse holding of the entire league against the heirs of the deceased wife.

6. The possession of one tenant in common, is the possession of all, and until there was an express repudiation of the trust, the possession of the vendees under James Bowie would be the possession also of the heirs of the deceased wife.

7. The said Richardson and his vendees never acquired any legal title to any portion of said league by virtue of the bond for title from James Bowie, and said Richardson and his vendees never having perfected their legal title within the ten years allowed by law, they could convey no legal title.

8. The purchasers of said land from Richardson and his vendees must rely, for title, either upon their adverse possession of five years, under a deed or deeds duly recorded, attended with all the incidents of ownership required by the statute, or upon ten years of such possession. Three years' adverse possession cannot avail them in this suit.

9. The laws of limitation in this State were suspended from the 28th day of January, 1861, up to the 30th of March, 1870, and this time should not be computed in determining the adverse possession.”

1. We think the first instruction asked is now the settled law on the subject, and it ought to have controlled the case. (Paschal's Dig., p. 778, note 1051.)

2. The second instruction is the law that should have been given. (Wilkinson v. Wilkinson, 20 Tex., 237.)

3. We think the third charge asked was a proper construction of the title bond. (Secrest v. Jones, 21 Tex., 121;Browning v. Estes, 3 Tex., 473.)

A party having right of entry into real estate must make entry in ten years, & c. (Paschal's Dig., art. 4621, note 1030.)

In support of the third instruction, we refer also to the following authorities: 2 Story's Eq., 715; Hemming v. Zimmerschitte, 4 Tex., 165;Estes v. Browning, 11 Tex., 237;Vardeman v. Lawson, 17 Tex., 15;Mitchell v. Sheppard, 13 Tex., 484;Smith v. Hampton, 13 Tex., 463;Glasscock v. Nelson, 26 Tex., 150.

4. The fourth instruction was the law, as settled in the case of McMasters v. Mills, 30 Tex., 593.

5. The fifth instruction was applicable and pertinent to the case, and should have been given. (Bailey v. Trammell, 27 Tex., 317;Roberts v. Thorn, 25 Tex., 728.)

6. The sixth instruction is a familiar rule of law. (Alexander v. Kennedy, 19 Tex., 488;Gilkey v. Peeler, 22 Tex., 663;Portis v. Hill, 3 Tex., 273;Bailey v. Trammell, 27 Tex., 328.)

7. The seventh instruction should have been given, as a proper construction of the title bond.

8 and 9. The eighth and ninth instruction should have been given.

The charge of the court, as given, did not instruct the jury fully as to the time of the suspension of the statutes of limitation.

The charges asked by plaintiffs, in relation to the genuineness of the title bond, were important issues, that should have been given to the jury.

Plaintiffs also objected to the admissibility in evidence of the mutilated record of the bond.

On the day before the trial, the plaintiffs' counsel made a personal examination, for the first time, of the record of the bond, and immediately filed an amendment, charging that a base fraud had been committed by Richardson, in the date and terms and conditions of the bond, and called for the production of the original. * * *

I contended before the jury, and now insist before this court, that the historical facts, which the court must judicially know, will demonstrate that the pretended sale of the league of land by Colonel Bowie, on the 15th of October, 1835, was a...