White v. McCullough

• Citation: 120 S.W. 1093
• Parties: WHITE et al. v. McCULLOUGH.
• Decision Date: 10 June 1909
• Court: Texas Court of Appeals

120 S.W. 1093

WHITE et al. v. McCULLOUGH.

Court of Civil Appeals of Texas.

June 10, 1909.

Rehearing Denied July 1, 1909.

Appeal from District Court, Fannin County; Ben H. Benton, Judge.

Action by J. W. McCullough against R. C. White and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

S. F. Leslie, Jacob C. Baldwin, Thurmond & Steger, and McGrady & McMahon, for appellants. Richard B. Semple, for appellee.

HODGES, J.

This is an action of trespass to try title, brought by the appellee against the appellants, including the unknown heirs of J. H. Knapp, to recover the eastern one-third of the J. H. Knapp survey, situated in Fannin county. The appellee pleaded his title specially, claiming under a transfer, both written and verbal, of the original headright certificate issued to Knapp before its location to one W. H. McCullough and also through a transfer from Knapp to one W. M. Cook. The evidence relied upon to support either or both of the transfers was indirect and circumstantial, and upon its sufficiency depends the right of the appellee to the judgment rendered in his favor in the court below. The evidence shows that a headright certificate for one-third of a league of land was issued to J. H. Knapp on March 1, 1838, and was certified by the Commissioner of the General Land Office as having been approved August 28, 1841. On October 24, 1845, a tract of 1,476 acres, including the land in controversy, was, by virtue of that certificate, surveyed for W. M. Cook in Fannin county. The field notes and certificate were returned to the land office, and a patent issued in the name of J. H. Knapp July 7, 1855. This original patent was subsequently found among the papers of John McCullough, a brother of W. H. McCullough, through whom appellee claims, and was offered in evidence on the trial. The missing link in the chain of title relied upon by the appellee is as to the transfer of the original certificate from Knapp to W. H. McCullough. It must be conceded that, if W. H. McCullough acquired ownership of the certificate, the testimony is sufficient to show a good chain of title from him to the appellee. For the purpose of showing a transfer from Knapp to W. H. McCullough the following evidence was adduced: (1) The following indorsements on the file wrapper in the land office: "File 241. Fannin 2nd Class. H. R. Cert. 1/3 League, J. H. Knapp. Filed May 23, 1853." "McCullough, Assignee J. H. Knapp. No. 100, 1/3 League. Dr. Roberts applied for these three numbers — 100, 1/3 League; 2866, 640 acres; 291, 640 acres— to be surveyed so as to join B. Flaharty's on the Mission as may be. B. Book 48. March 17, 1839." (2) A special warranty deed from Wm. M. Cook to John McCullough, dated May 5, 1859, purporting to convey an undivided one-third interest in the tract of land surveyed, in consideration of the sum of $1,500 in hand paid by John McCullough, of the county of Galveston. The deed also contained this further recitation, after describing the land: "The headright of J. H. Knapp, located and patented in Fannin land district said state, in virtue of certificate No. 446 issued by the board of land commissioners of Harris county said state on the 1st day of March, A. D. 1838, which certificate was located and conveyed to me (Cook) by the said J. H. Knapp." (3) A special warranty deed on the same day from John McCullough to Wm. M. Cook, purporting to convey an undivided two-thirds interest in the before mentioned tract of land, which also contains this recitation, after referring to the date of the certificate, "which certificate was conveyed to Wm. H. McCullough, deceased, by the said J. H. Knapp," and further, "and I being administrator and sole heir of the said Wm. H. McCullough, deceased, do hereby bind myself, my heirs," etc. (4) A general warranty deed from John M. McCullough to Wm. M. Cook, dated April 9, 1864, purporting to convey a two-thirds undivided interest in the before described land, without naming any consideration. The deed recites that the land was patented in the name of J. H. Knapp by patent dated July 7, 1855, and the certificate for which was conveyed by the said Knapp to "my brother Wm. H. McCullough, whose sole heir I am." (5) A deed of trust from Cook to Samuel A. Roberts, trustee for R. H. Lane, in June, 1868, also a deed from Roberts as trustee to Lane after foreclosing the deed of trust in July, 1870, and other transfers of the property, not necessary here to mention.

J. J. Terrell, Commissioner of the General Land Office, testified by deposition concerning the indorsements found on the certificate filed in his office after the survey. He stated that he had examined the original certificate with the indorsements, and found on the original certificate the words "McCullough, Assignee," also "J. H. Knapp No. 100, 1/3 League." He did not know by whom those indorsements were made. He stated that the certificate also contained a further indorsement which was made in the land office, and is in a different handwriting from the other two indorsements "McCullough, Assignee," and "J. H. Knapp No. 100, 1/3 League." He further testified that the record showed that the patent, after its issuance, was delivered to P. De Cordova, who paid the fee of $1. J. W. Riddell testified for the plaintiff that the original patent, which was introduced on the trial, was handed to him by his sister, Mrs. McCullough, after the death of her husband, John McCullough. He did not remember what year that was, but thought it was a short time after the death of John McCullough in 1869 or 1870. He sent it to Bonham to Mrs. McCullough's attorney, to be used in the trial of a case involving a partition of this land. It was found among his sister's papers. The patent was indorsed on the back, "P. De Cordova, Fannin 2nd Class, File 241." He did not know who put that name there. He did not remember whether the indorsement was there when he sent it to the attorney, or not. The testimony on the part of the appellee further showed that W. H. McCullough and John McCullough were brothers, but it is also shown that there were other brothers, and also sisters, of W. H. McCullough. W. H. McCullough died in 1838. John McCullough died about 1869 or 1870. It was further in evidence that the appellee and those under whom he claimed had paid the taxes on the land since 1881. From 1861 to 1863, 984 acres of the land was assessed against Wm. M. Cook, as assignee of J. H. Knapp. For the next two years following all of the land was assessed against Cook. Thereafter it appears to have been assessed against different parties.

The case was submitted to the jury on special issues, among which were the following questions and answers: "First. Did J. H. Knapp transfer to W. M. Cook the land certificate upon which the premises sued for were located and patented prior to its location? Second. Did John McCullough acquire title to said land certificate through W. H. McCullough from J. H. Knapp as alleged? Third. If you should answer that J. H. Knapp sold the land certificate to W. M. Cook, then you will answer whether such sale was by verbal or written transfer, and whether the same was before or after the 17th of October, 1845 [when the certificate was located]. If you are unable to find from the evidence whether said transfer, if same was made, was verbal or written, then you will so state. Fourth. If you should find that J. H. Knapp sold the land certificate to W. H. McCullough, then you will answer whether or not such sale was verbal or by written transfer, and whether the same was before or after October 17, 1845." The jury answered that Knapp did not transfer the certificate to Cook prior to its location. They also found that John McCullough did acquire title to the land certificate through W. H. McCullough from Knapp, as alleged; that such sale was verbal, and before its location October 17, 1845. There were other issues submitted, which we deem it unnecessary to mention in this connection. Upon these answers, and the others not mentioned, the court entered up a judgment in favor of the appellee for the land sued for, from which judgment the appellants have prosecuted this appeal.

The first assignment of error complains of the following portion of the court's general charge: "Where the alleged transfer may have occurred over 30 years ago, the law does not require plaintiff to show such transfer by witnesses who actually saw the same. Such transfer may be shown by circumstances, such as the claim, if any, to the land patented under said certificate, asserted by plaintiff, and those under whom he claims, under deeds duly registered; the payment of taxes on said land during said years, by parties claiming under said transfer; the recitals in any one or more deeds in plaintiff's chain of title that such transfer was made as claimed by plaintiff; the failure of any adverse claimant to set up a claim to said land adverse to that of plaintiff; the partition of said survey between claimants thereto, and sales of portions of said survey by persons claiming under said transfer, by deeds duly registered. Such circumstances are admissible to show to what extent plaintiff, and those under whom he claims said land, asserted such claim. If such evidence is supplemented by other evidence showing that plaintiff is unable to produce better evidence of said transfer of said certificate, it would be sufficient to raise a presumption that said transfer was made." It is claimed that this is upon the weight of the evidence, and we think it is subject to the objection. Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963. After telling the jury that the transfer of a land certificate might be shown by circumstantial evidence, the charge then proceeds, in detail, to enumerate the different facts and circumstances which the jury might consider in determining whether or not there had been a transfer of the certificate from Knapp, and...