Western Union Beef Co. v. Thurman

• Decision Date: 03 December 1895
• Docket Number: 391.
• Citation: 70 F. 960
• Parties: WESTERN UNION BEEF CO. v. THURMAN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

70 F. 960

WESTERN UNION BEEF CO. v. THURMAN et al.

No. 391.

United States Court of Appeals, Fifth Circuit.

December 3, 1895

Thos H. Franklin and T. D. Cobbs, for plaintiff in error.

W. B Brack, for defendants in error.

Before PARDEE and McCORMICK, Circuit Judges, and BOARMAN, District Judge.

PARDEE Circuit Judge.

The first and second assignments of error are to the effect that the court erred in refusing to allow the defendant in the court below to introduce in evidence, in the absence of the originals, certified copies of certain deeds, for the purpose of showing an outstanding title to one-half of the land in controversy. The contention with regard to this matter is that the original deeds were in the possession of the plaintiffs and their counsel of record, who, after due notice, had neglected and refused to produce them. It was claimed that they were in the possession of the plaintiffs because one J. C. Patton, who was the grantee in one of the deeds and the grantor in the other, was chief counsel for the plaintiffs. The evidence on the subject is as follows Defendant introduced in evidence the petition which was filed in court on the 29th day of December, 1891, to show who was signed as attorneys of record thereto. The petition was signed by S. C. McCormick alone, but W. B. Brack was attorney who represented plaintiffs in the trial and conduct of the case. W. B. Brack, being duly sworn, stated that he was employed in the case by S. C. McCormick, who signed the petition. He stated that from correspondence with McCormick within the last six months, no doubt J. C. Patton employed S C. McCormick, and gave him an interest in the land for his fee to bring the suit, but that he (Brack) was employed in the suit by McCormick, and not by Patton; that McCormick filed the petition; that he (Brack) did not have the original deed in his possession, and never saw it; that neither Patton nor McCormick was present at this term of the court; that in September, 1894, Patton wrote to him inquiring about the suit, and that this was his first and only communication from him; that about this time he got a letter from Denman & Franklin, defendant's attorneys at San Antonio, who wanted to continue the case, and as he had continued the case so often, and there was some misunderstanding between him and McCormick about the fee, he was not willing to consent to a continuance, but told Mr. Kemp, one of defendant's attorneys, that, if Denman & Franklin would telegraph Patton, he would respect any agreement for a continuance that Patton would make; that thereupon Davis, Beall & Kemp, defendant's attorneys at El Paso, telegraphed Denman & Franklin on September 27, 1894, as follows: 'Brack says James C. Patton, attorney, 235 Main street, Dallas, is his chief, and expects to be here Monday, but wire him, and whatever he says will be respected. ' The witness stated that he recognized the dispatch as the one sent to Denman & Franklin and explained that the word 'chief' in it was not in reference to any contract relation between him and Patton, because there never was any, nor did he represent him. The defendant then offered in evidence the following telegram from J. C. Patton to Thomas H. Franklin, of Denman & Franklin: 'I hereby agree to continuance of case Thurman against beef company. ' On this evidence, the trial judge, without assigning specific reasons therefor, refused to allow the certified copies to be read in evidence, but we take it that the refusal was because the evidence did not sufficiently show that Patton was counsel for the plaintiffs, or controlled the case for them to such an extent that his possession, even if he had the originals, could be treated as the possession of the plaintiffs; and, of course, the plaintiffs were not required to produce any originals or other deeds not in their hands or under their control. The plaintiff in error submits, in support of these assignments, 1 Greenl.Ev. § 572; Dean v. Border, 15 Tex. 299. These authorities declare the rule as to copies where the original documents wanted in evidence are within the hands or power of the adverse party.

The third assignment of error is that the court erred in not submitting to the jury the question of limitation under defendant's plea of 10 years, because the proof was sufficient to raise the issue, so that the same ought to have been submitted to the jury. The substance of the proof on said issue was that one George M. Martin conveyed all the land in controversy to W. B. Knox, by a deed dated March 1, 1866, which deed was duly acknowledged and filed for record and recorded on July 14, 1866; also a deed from Martha Knox and Annie E. Knox, conveying to the Western Union Beef Company an undivided one-half interest in and to the lands sued for, authorizing said company to take and hold possession of the entire tract of land, which deed was dated March 29, 1894. The proof further showed that one G. N. Frazier went into possession of the lands sued for on the 19th day of October, 1868; that he took possession of the same for W. B. Knox, and made improvements thereon; that he remained in possession until September, 1885, holding possession for W. B. Knox from the time of his original entry up to the death of Knox, about 1878 or 1879, and thereafter holding possession for the sisters of Knox, Martha Knox and one Mrs. Davis, supposed by him to be the heirs of Knox. After the death of Knox, Frazier rendered the property for taxation, and paid the taxes for and in the name of the sisters. The sisters of Knox were not his heirs, but his heirs were his adopted daughter, Annie. E. Knox, and his surviving wife, afterwards a Mrs. Eckford.

It is not necessary to recapitulate more of the evidence, as this testimony of Frazier was undisputed, and presents the exact question which is raised by the assignment of error. This evidence does not show continued adverse possession of 10 years in W. B. Knox and for his heirs, but that the same was interrupted by the death of Knox, because Frazier held thereafter for the sisters of Knox, who were not his heirs, and were not in privity with the Knox title. The plaintiff in error contends that the possession of Frazier for Knox was continued for his heirs, and that as a matter of law, on the evidence, the possession of Frazier from the time he entered, in 1868, until he left the property, in 1885, was one continued adverse holding. The defendants in error contend that the possession of Frazier after the death of Knox, being for the sisters, and not the heirs, of Knox, was adverse to Knox's title, and properly defeats the plea of 10 years' limitation; the result being exactly the same as if Knox had held in his own right until 1878 or 1879, and from there on Mrs. Davis and Martha Knox had possessed in their own right, but not in privity with Knox. No presumption should be resorted to, to help out the possession by which a trespasser acquires title against the true owner; but whoever claims under the statute, should bring himself clearly within the terms of the law, and show that his possession was continuous and adverse-- the same flag flying-- for the whole period named.

In this matter we have examined the following authorities, cited by counsel for the plaintiff in error: Gresham v. Chambers, 80 Tex. 544, 16 S.W. 326; Craig v. Cartwright, 65 Tex. 422; Moody v. Holcomb, 26 Tex. 719; Bridges v. Johnson, 69 Tex. 717, 7 S.W. 506; Mims v. Rafel, 73 Tex. 303, 11 S.W. 277; Branch v. Baker, 70 Tex. 194, 7 S.W. 808; Ballard v. Carmichael, 83 Tex. 366, 18 S.W. 734; Smithwick v. Andrews, 24 Tex. 488; Baily v. Trammell, 27 Tex. 317. But we find none of them bearing upon the precise point in this case, which is, as a question of law, under the evidence of Frazier, was the possession of the property under the Knox title continuous and adverse from 1868 to 1885? After careful consideration, we are not able to say that the trial judge, with the witnesses before him, erred in his conclusion of law on this branch of the case.

The fourth assignment of error is that the court erred in refusing to submit to the jury the question whether or not the plaintiffs in said action were the heirs of Fleming G. Thurman, to whom the land was patented. The proof on the subject is as follows:

'Be it remembered that, on the trial of said cause, the plaintiff introduced in evidence the certified copy of the patent from the state of Texas for the land sued for, dated 28th day of January, 1862; the recitals in the body of said patent describing certificate No. 193 as follows: 'Issued by the board of land commissioners of Fayette county on the 13th of January, 1840, to Fleming G. Thurman, natural heir of Geo. C. Thurman."

The only proof of heirship submitted by plaintiffs is the deposition of Joseph B. Thurman, which was taken March 18 1892, and is as follows: 'I reside in Columbus, Cherokee county, Kansas; have resided there twenty-one years; and now reside there. My place of residence must be near 1,800 miles from El Paso, Texas. I am 58 years old. My health is very poor; got no strength to walk alone. My...