W. T. Carter & Bro. v. Rhoden

• Decision Date: 09 May 1934
• Docket Number: No. 2562.,2562.
• Parties: W. T. CARTER & BRO. v. RHODEN et al.
• Court: Texas Court of Appeals

Page 620

72 S.W.2d 620

W. T. CARTER & BRO. v. RHODEN et al.

No. 2562.

Court of Civil Appeals of Texas. Beaumont.

May 9, 1934.

Rehearing Denied June 6, 1934.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Trespass to try title by D. E. Rhoden and others against W. T. Carter & Bro., a partnership, and others. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Baker, Botts, Andrews & Wharton and S. H. German, all of Houston, and M. M. Feagin, of Livingston, for appellants.

V. A. Collins, of Livingston, J. T. Lindsey, of Port Arthur, and C. A. Lord, of Beaumont, for appellees.

WALKER, Chief Justice.

This was a trespass to try title suit involving 200 acres of land, part of the James Morgan league in Polk county, by the widow and children of Eli Rhoden, except his son T. W. Rhoden, suing as plaintiffs and interveners, against W. T. Carter & Bro., a partnership, and the individual members of the partnership. The plaintiffs and interveners pleaded the general issue of trespass to try title and the ten-year statue of limitation (Vernon's Ann. Civ. St. art. 5510). The defendants answered by pleas of general denial, not guilty, and the twenty-five year statute of limitation, under the provisions of article 5519a, Vernon's Annotated Texas Civil Statutes. Only the issue of ten-year limitation was submitted to the jury and, on the verdict finding that issue in favor of plaintiffs and interveners, judgment was entered for them for an undivided 8/10ths interest in the land sued for. The appeal was duly perfected by the defendant against this judgment.

Appellees, plaintiffs and interveners below, offered in evidence the following chain of title. On the 8th day of October, 1835, the James Morgan league of land in Polk county was granted to James Morgan on application signed by "J. Morgan" at Nacogdoches, Tex., on the 16th day of January, 1835. By warranty deed executed in the state of Mississippi on the 7th day of January, 1862, "James Morgan" conveyed to R. W. B. Martin the following tract of land, being the James Morgan league of land in Polk county "a certain league of land granted to me as a colonist by the Government of Mexico, said league of land lying and being situated in the County of Polk, State of Texas and Menards creek in said County and for a more particular and minute description of said league of land as to metes and bounds reference is hereby made and may be had to the original titles and papers now on file in the General Land Office of the State of Texas at the City of Austin." By his warranty deed dated the 16th day of February, 1867, Martin conveyed the Morgan league of land to O. Teagarden, and by warranty deed dated the 9th day of March, 1867, Teagarden conveyed the same land to M. S. Mather. On January 1, 1875, M. S. Mather by deed executed by her attorneys in fact, G. W. Davis and H. M. Trueheart, conveyed the 200 acres of land in controversy, part of the Morgan league, to Charles Hogan who by deed dated the 30th day of August, 1877, filed for record the 26th day of September, 1908, conveyed the same 200 acres of land to Eli Rhoden. Rhoden died in the fall of 1881 and proof of heirship was made by appellees under Eli Rhoden to an 8/10ths interest in the 200 acres of land. After introducing their chain of title, for the purpose of proving common source with appellants, appellees offered proof that T. W. Rhoden was also a son of Eli Rhoden. Then they offered a deed from T. W. Rhoden dated July 6, 1903, conveying the 200 acres of land in controversy to R. S. Walters; a deed from Walters dated July 8, 1903, conveying the same tract of land by metes and bounds to Wm. Carlisle & Co.; a deed from Wm. Carlisle & Co. dated December 1, 1909, conveying the same tract of land by metes and bounds to West Lumber Company; a deed from West Lumber Company dated October 18, 1926, conveying this same tract of land by metes and bounds to appellants W. T. Carter & Bro.

Appellants assign error against the refusal of the trial court to submit the following question, duly requested by them:

"Was the James Morgan who signed the deed of January 7, 1862, the same J. Morgan to whom the James Morgan league of land in Polk County was granted on October 8, 1835?"

This question presented one of the determinative issues in the case because a negative answer thereto would have destroyed an essential link in appellees' chain of title. The evidence raised this question as one of fact for the jury. The circumstance that "James Morgan" executed his deed to Martin in Mississippi, was of strong probative force against the presumption that he was the James Morgan, a citizen of Texas, to whom the land was granted. On this issue it was said in Holland v. Blanchard (Tex. Civ. App.) 262 S. W. 97, 101:

"The law of this state (article 1107, Revised Statutes [now article 1292]) provides that all deeds of conveyance shall state the residence, that is to say, the town or city, county, and state of both grantor and grantee. This is not an idle provision of the law, but was made, in view of the similarity of the names of so many people, as a means of determining identity.

"Jones on the Law of Real Property, vol. 1, § 213, states the purpose of such recitals as follows:

"`A description of a party to a deed by name, residence and occupation only furnishes the means of identification. That is all that any description can do. It does not in itself identify the party. It affords a presumption which is ordinarily all that is required.'"

But independent of that circumstance, the difference between the signature "J. Morgan" on the application and the signature "James Morgan" on the Martin deed raised the issue requested by appellants. These signatures differed so fundamentally that reasonable minds could hardly agree that they were written by the same person. This inference is strengthened by the circumstance that the application was signed "J. Morgan," while the deed was executed by "James Morgan." On this issue the general rule at common law was as stated in Cook v. Bank (Tex. Civ. App.) 33 S. W. 998, 999:

"* * * At common law the genuineness of disputed handwriting could not be determined by the court and jury by comparing it with other handwriting of the party."

However, on authority of Kennedy v. Upshaw, 64 Tex. 411, Cook v. Bank recognized the following exceptions to the general common-law rule:

"The well-established exceptions to this rule are (1) that if the paper admitted or proven to be in the handwriting of, or to have been subscribed by, him, was in evidence for some other purpose in the cause, the paper in question might be compared with it by the jury; and (2) where a document is of such date that we cannot reasonably be expected to find living persons acquainted with the handwriting of the supposed writer, either by having seen him write, or by having held correspondence with him, other ancient documents, which are proved to have been treated and regularly preserved as authentic, may be compared with the disputed one. Best, Ev. §§ 239, 240; Greenl. Ev. 578; Hickory v. U. S., 151 U. S. 305, 14 S. Ct. 334 ."

This general exception was thus stated by the Supreme Court in the Upshaw Case:

"This evidence falls within the rule which permits the opinions of experts to be given, and permits the jury to determine for themselves, from an examination of the papers before them, whether the writing in controversy is genuine. The papers examined were already in the case and admitted to be genuine, or were such as the appellant was estopped to deny the genuineness of. 1 Greenleaf, 578, 581; 1 Wharton's Law of Evidence, 713; Abbott's Trial Evidence, 396; Best on Evidence, 239."

See, also, Commercial Standard Ins. Co. v. McGee (Tex. Civ. App.) 40 S.W.(2d) 1105, 1107; Griffin v. Home Ass'n, 151 Ala. 597, 44 So. 605; and Wade v. Ry. Co. (Tex. Civ. App.) 110 S. W. 84, 88.

While there was no proof that the signature "J. Morgan" to the application was the handwriting of the James Morgan to whom the land was granted, or that it was subscribed by him, yet the application was of such date that, quoting Cook v. Bank, supra, "we cannot reasonably be expected to find living persons acquainted with the handwriting of the supposed writer, either by having seen him write, or by having held correspondence with him." The application for the land and the signature thereto were lawfully in evidence in support of the title issued to James Morgan, and for almost a century have been treated and regularly preserved as authentic. As the Morgan deed to Martin was properly before the jury as an essential link in appellees' chain of title, under the authorities cited, it was the prerogative of the jury to reach a conclusion upon the issue of identity by an examination and comparison of the signature upon the application with the signature upon the Martin deed, although the jury was not aided by expert testimony based upon said signatures, this, because the two signatures differ so fundamentally that even a nonexpert could discern the difference, and, for the further reason, quoting from the McGee Case, supra, "because expert testimony could only have furnished additional aid to the jury in determining the issue."

Against this conclusion, appellees assert that the personal signature of the grantor is not essential to the validity of his deed; that if he acknowledges it to be his, though actually written by another, he thereby adopts it and it becomes his act and deed as truly as if he had signed it with his own hand. The following authorities fully support this general proposition. Willis v. Lewis, 28 Tex. 185; Newton v. Emerson, 66 Tex. 145, 18 S. W. 348; McAllen v. Raphael (Tex. Civ. App.) 96 S. W. 760; Mondragon v. Mondragon (Tex. Civ. App.) 239 S. W. 650; Trezevant v. Rains (Tex. Sup.) 19 S. W. 567. But this proposition does not support the ruling of the court refusing to submit the requested issue. The circumstances...