West v. Houston Oil Co.

• Decision Date: 12 April 1907
• Citation: 102 S.W. 927
• Parties: WEST et al. v. HOUSTON OIL CO. OF TEXAS et al.
• Court: Texas Court of Appeals

102 S.W. 927

WEST et al. v. HOUSTON OIL CO. OF TEXAS et al.

Court of Civil Appeals of Texas.

April 12, 1907.

Rehearing Denied June 6, 1907.

Appeal from District Court, Sabine County; James I. Perkins, Judge.

Action by Samuel A. West and others against the Houston Oil Company of Texas and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

A. L. Beaty, R. R. Hazlewood, Davis & Davis, J. A. Templeton, Tom C. Davis, and Goodrich & Synott, for appellants. Holland & Holland, Lanier & Martin, Denman, Franklin & McGown, A. D. Hamilton, and Taliaferro, Nall & Dies, for appellees.

PLEASANTS, J.

This is an action of trespass to try title, brought by the appellants against the appellees. The land in controversy is the league granted to Jesse McGee by the state of Coahuila and Texas, and situate partly in Sabine and partly in Newton counties. The defendants pleaded not guilty, and limitation of three, five, and ten years. The case was tried before a jury, and under peremptory instructions from the court a verdict was returned in favor of defendants, and judgment was rendered accordingly.

Plaintiffs claim title under a deed from Jesse McGee to William Dobson, bearing date January 14, 1840. The defendants claim under subsequent deeds from the original grantee, Jesse McGee, and sought to defeat plaintiffs' claim: First, by showing that the deed to Dobson was a forgery; second, that said deed did not describe the land in controversy with sufficient certainty to identify it; and third, that they purchased the land for value and without notice of plaintiffs' claim. The land in controversy was granted to Jesse McGee as a colonist in the colony of the Empresario Lorenzo de Zavalla. The grant was extended by a testimonio issued by George Antonio Nixon, commissioner for the state of Coahuila and Texas, on November 23, 1835. The deed from Jesse McGee to William Dobson, before mentioned, describes the land as follows: "All that tract, lot or parcel of land containing four thousand, four hundred and twenty-eight acres and being the league of land granted to me, the said McGee, by George Antonio Nixon, commissioner of the Empresario Lorenzo de Zavalla, which said land is situated in Jefferson county on Cabiceras Bayou and joining the land of Frances Valeres on the east, and for further description of said land reference is hereby made to the original plat and field notes of survey which are on file and of record in the general land office of this republic, and reference may also be had to the title papers which are herewith handed to the purchaser." This deed was acknowledged before Martin Parmer, chief justice and ex-officio notary public of Jasper county, on July 14, 1840, and was recorded in Jefferson county on February 21, 1846, in Newton county on March 27, 1871, and in Sabine county on March 28, 1871. The original of this deed was introduced in evidence, and was shown to have been delivered to plaintiff Samuel A. West by his ancestor along with other deeds in his chain of title from William Dobson. It appears to be an old instrument. No alterations are shown upon its face, and it is in apparently the same condition now as it was at the time of its execution. A son of Martin Parmer testified that the signature to the acknowledgment was his father's genuine writing, and that McGee and his father both lived in Jasper county and were well acquainted with each other. After the execution of this deed, Jesse McGee moved to Polk county, where he resided until 1860, when he moved to Denton county, and remained there until 1879. In the latter year he moved back to Newton county and took possession of the land in controversy. Two of McGee's grandsons testified that, a short time before their grandfather moved back on the land, they heard him say that he had previously sold it to Dobson, but that he did not get much for it, and his wife had not signed the deed, and he intended to try to get it back. Other witnesses testified that they had heard McGee say, after he returned to the land, that he had previously sold it, but that he intended to sell it again. The defendants claim under deeds executed by Jesse McGee after he returned to the land in 1879. During the time that McGee was living in Polk and Denton counties, from 1840 to 1879, he paid no taxes on the land, and, so far as shown by the record, asserted no claim thereto, and exercised no acts of ownership thereover. Plaintiffs and their ancestor, Samuel West, have paid taxes on the land since 1850. The first payment of taxes in Newton county was made in 1860, at which time the taxes for the preceding 10 years were paid.

The defendants filed an affidavit of forgery, and in support of said charge it was shown that Jesse McGee was unable to write his name, and his signature was usually made by mark; whereas, in the deed to Dobson his name appears written in full, with no mark attached. The testimony further shows that the name of Jesse McGee signed to said deed appears to be written in the same handwriting as the body of the instrument and the acknowledgment. It was also shown that one of the title papers delivered to Dobson by McGee at the time the deed was delivered was a testimonio purporting to have been issued by George Antonio Nixon on November 23, 1835, and which grants to Jesse McGee, as a colonist in the Zavalla colony, a league of land situate in Jefferson county. This instrument described by metes and bounds a league of land in Jefferson county which had been previously surveyed for James Hoggatt and was subsequently granted to him. The general location of this survey corresponds to that portion of the description in the deed to Dobson which states that the land conveyed is in Jefferson county and adjoins the land of Francis Valeres on the east. So far as the records of the land office show, no grant was ever made to Jesse McGee, other than the league in controversy, situate in Newton and Sabine counties, and which was granted to him as a Zavalla colonist by George Antonio Nixon on November 23, 1835. Dobson sold the land conveyed to him by McGee to David Lawrence on May...