Ward v. Forrester

• Court: Texas Court of Appeals
• Writing for the Court: Fisher
• Citation: Ward v. Forrester, 80 S.W. 127, 35 Tex. Civ. App. 319 (Tex. App. 1904)
• Decision Date: 30 March 1904
• Parties: WARD v. FORRESTER et al.

80 S.W. 127

WARD v. FORRESTER et al.

Court of Civil Appeals of Texas.

March 30, 1904.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Action by Robert Forrester and others against George H. Ward. From a judgment for plaintiffs, defendant appeals. Reversed.

Hale, Allen & Dohoney, for appellant. S. W. Harman, for appellees.

FISHER, C. J.

This is an action by appellees in form of trespass to try title, but the principal question involved is one of boundary between the survey owned by appellant and those owned by appellees. Verdict and judgment of the trial court were in favor of appellees for the land in controversy.

The appellant, by assignment of error, complains of the verdict and judgment on the ground that they are not supported by the evidence; that the testimony shows that the boundary lines of the surveys should have been established according to his contention. While there is much evidence in the record that tends to support the appellant's theory, we are not prepared to say that the verdict of the jury in favor of the appellees is without evidence to support it. Therefore we are of the opinion that this assignment is not well taken.

We are of opinion that appellant's first assignment of error presents reversible error. As a muniment of title necessary to be shown by the appellees, the plaintiffs below, they introduced in evidence a deed executed by one Dinwiddie, as substitute trustee, conveying the land in question to the Texas Farm Land Company, from whom the appellees deraign title. This deed is predicated upon a deed of trust executed by one Splawn to secure a debt due the Security, Mortgage & Trust Company. One J. T. Dargan was, by the terms of this instrument, appointed trustee. The Security, Mortgage & Trust Company, the holder of the indebtedness against Splawn, executed an instrument, which was offered in evidence, to the effect that Dargan had refused and declined to act as trustee, and therefore Dinwiddie, as the sheriff of Red River county, was appointed substitute trustee. The appellant, in the trial of the case, objected to the introduction in evidence of the substitute trustee's deed and to the instrument executed by the Security, Mortgage & Trust Company appointing Dinwiddie as substitute trustee, on the ground that it was not shown that Dargan, the original trustee, had refused or declined to act, and that the mere appointment of the substitute trustee and the recitals contained in the deed executed by him of the fact of his appointment, were not admissible as evidence establishing the fact that Dargan had refused to act. The instrument offered, showing the appointment of the substitute, was admissible as evidence of that fact, and would authorize him to act, provided the contingency had occurred that authorized his...