Wright v. Giles

• Decision Date: 30 April 1910
• Citation: 129 S.W. 1163
• Parties: WRIGHT et al. v. GILES.
• Court: Texas Court of Appeals

129 S.W. 1163

WRIGHT et al. v. GILES.

Court of Civil Appeals of Texas.

April 30, 1910.

Rehearing Denied May 28, 1910.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Trespass to try title by W. S. Giles against G. G. Wright and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Harris, Rouse & Britton and K. R. Craig, for appellants. Looney & Clark and M. D. Carlock, for appellee.

RAINEY, C. J.

This is an action of trespass to try title, brought by B. M. Giles against G. G. Wright, John Berry, Tom Berry, C. P. Gordon, H. E. and W. E. Henry, and the Henry Lumber Company, to recover the James Hamblin survey of land patented to Robert W. Caldwell, as assignee, situated in Wood county, Tex., alleged to contain 1,065 acres. All the defendants, except John Berry, filed disclaimers and set up that their acts of possession were under and through the Little Sandy Hunting & Fishing Club. Said club made itself a party, alleging that it was a private corporation under a charter from the state of Missouri, and claiming all of said land, except 34 acres claimed by John Berry, which it disclaimed and pleaded not guilty. John Berry claimed 34 acres of said land and disclaimed as to the balance. The said club filed petition and bond for removal of the cause to the United States court, which was granted; but the United States court remanded same to the state court, where the cause was tried by the district judge without a jury, and judgment rendered in favor of W. S. Giles upon his paying the sum of $200 into court for the benefit of the said club. From this judgment the Little Sandy Fishing & Hunting Club and John Berry only gave notice of appeal; but all the defendants filed an appeal bond.

The trial court filed its conclusions of facts, as follows:

"Plaintiff, W. S. Giles, Addie Beckham, Lula Giles, R. L. Giles, R. P. Giles, and J. D. Giles, are children of B. M. Giles; W. S. Giles by his first wife, who died prior to 1860. All the other plaintiffs are children by a second marriage of said B. M. Giles, which wife survived B. M. Giles and died March 28, 1907, B. M. Giles having died January, 1881. I. C. Giles, a son by the first marriage and whole brother of W. S. Giles, is not a party to this suit.

"The land herein was patented to Robert W. Caldwell as assignee of Jas. Hamblin on May 31, 1855. The land in controversy was sold and deeded by the tax collector in Wood county in 1861 or 1862 to B. M. Giles for delinquent taxes upon said land, which deed was recorded in the deed records in Wood county, Tex., prior to 1876. The deed records of Wood county were destroyed by fire December 11, 1878, and this deed was lost in 1867, or thereabouts. In 1876 B. M. Giles and his son W. S. Giles had a tie contract for the Texas & Pacific Railway Company, and under the said tax deed entered upon said land, built tie camps, and cut timber suitable to be made into ties for same. One O. J. Forceman, a tie maker under B. M. and W. S. Giles, built a log house on the said land and lived in the same from about 1878 until about 1883. This was the most permanent of the structures built by the tie makers. Forceman dug a well, cleared one or two acres of land, and cultivated the same for the years he occupied the house. At this improvement, as well as other cabins used by the tie makers, were corrals for the teams that hauled the ties. This house was never occupied after Forceman and his family moved out. In 1881 a negro named Jones entered upon and took possession of 100 acres of this land, lying east of Little Sandy creek, under a contract of purchase from Mrs. B. M. Giles. His title was never ripened into a perfect title. In 1882 John Berry, defendant, moved on this 100 acres as Jones' tenant, and continued to occupy this land as his tenant until ____, when he repudiated the tenancy of Jones, sued him in trespass to try title for the 100 acres of land, which suit resulted in a judgment in favor of Jones against Berry in the district court of Wood county on the ____ recovering the land, under which judgment a writ of possession was executed by the sheriff of Wood county, Tex., against said Berry. On April 12, 1878, B. M. Giles deeded all the James Hamblin survey here in controversy to W. S. Giles; said deed containing the following conditions: "That the above-described land remain in possession of the said B. M. Giles, and the proceeds of said land to be used by him for the defraying of all expenses of said land and support of himself and wife and children during their natural lifetime, and at their death said land to become the property of said W. S. Giles in fee simple.' Said deed was delivered by B. M. Giles to W. S. Giles and duly recorded on April 19, 1878, in the deed records of Wood county, Tex., and again recorded May 2, 1907. On December 26, 1888, Abigail Thompson deeded to H. Munzenheimer the land in controversy; and from H. Munzenheimer, through mense conveyances down to defendants herein, the Little Sandy Hunting & Fishing Club and John Berry. The defendants claim the land through B. M. Giles as common source. At the April term, 1906, of the district court of Wood county, Tex., the state of Texas recovered judgment against G. Munzenheimer, A. H. Seinsheimer, and unknown owners of the land in controversy for delinquent taxes for the years 1898 and 1899, under which judgment there was regularly issued an order of sale on May 17, 1907, and said land was sold on July 2, 1907, by the sheriff of Wood county, Tex., to G. G. Wright and deed duly executed.

"Neither plaintiffs nor defendants have held peaceable and adverse possession of the land in controversy and paying taxes on same for as much as five consecutive years, except as to the 100 acres lying east of Little Sandy creek and particularly described in the judgment of Jones v. Berry, hereinbefore referred to. Said Jones held same as the agent of Mrs. B. M. Giles for more than 10 years, peaceably and adversely, cultivating using, and enjoying the same. That J. C. Giles and Jeff Giles, acting with Mrs. B. M. Giles, on December 26, 1888, procured Abigail Thompson to execute the deed to H. Munzenheimer, and thereby deceived H. Munzenheimer into the belief that she owned the land. Abigail Thompson was a feme sole, sister of Mrs. B. M. Giles, and lived with B. M. Giles years before his death, and lived with Mrs. B. M. Giles until her (Abigail Thompson's) death. Of the land in controversy, defendants herein have covered about 350 acres with water and destroyed ____ timber. This occurred after the deed from the sheriff under the tax judgment on July 2, 1907."

We adopt the trial court's findings of fact except as may be hereinafter indicated in this opinion.

The first assignment of error presented is: "The court erred by refusing the application of the defendant Little Sandy Hunting & Fishing Club for the removal of said cause to the United States Circuit Court for the Eastern district of Texas, and in assuming and exercising jurisdiction of said cause after said defendant had filed and presented its petition and bond for the removal of said cause in the manner prescribed by the statutes of the United States in such cases provided."

The cause was removed to the federal court on defendant's petition; but a motion to remand to the state courts was granted by the federal court, and the trial judge did not err in taking jurisdiction of and trying the cause.

The second assignment of error presented is: "The trial court erred by admitting the testimony of I. C. Giles to the fact that he had seen on the records of Wood county, Tex., the record of the deed from the tax collector of Wood county, Tex., purporting to convey to B. M. Giles the land in controversy. And the court further erred by holding such testimony sufficient to establish the fact of the execution and delivery of the deed and of the existence of the facts necessary to have authorized the tax collector to execute said deed, as well as the identity of the land embraced in said deed with the land in controversy." Under this assignment is presented the following propositions: (1) Without first having proved the execution, previous existence, and loss of the instrument, no proof of its contents was admissible. (2) Proof of the contents of the record was not admissible unless it had been first shown that the deed was properly acknowledged for registration. (3) Plaintiffs and their ancestors, having failed to avail themselves of the statutory remedy for the substitution of destroyed records, should not be permitted to resort to secondary evidence of the contents of such record.

The testimony of I. C. Giles objected to is: "I knew something of the James Hamblin survey of land located near Hawkins in Wood county, Tex. I know where the James Hamblin survey is located, and I know that long about the year 1862 my father bought the Hamblin survey along with a lot of other lands at tax sales. I did have occasion to examine the deed records of Wood county, Tex., prior to the time the courthouse of Wood county was burned. About the time the Texas & Pacific Railway was building through Wood county, my father was living at Jefferson, Tex., and I was living near Quitman in Wood county, Tex., and at that time my father wrote to me to go to the county records of Wood county and obtain a list of all the lands that he had purchased at the aforesaid tax sales. I went immediately to the records and obtained the desired list, and included in said list was the James Hamblin survey. I sent the list thus obtained to my father. * * * I found a deed from the tax collector of Wood county, to wit, William Doyle, who by virtue of his office had levied upon and advertised and sold the James Hamblin survey for delinquent taxes; my father being the purchaser and grantee named in said deed. I am almost sure, in fact, I know, that the sale of the Hamblin survey to my father, B. M. Giles, was made in 1862, which is also the...