Zobel v. Slim

• Decision Date: 29 December 1978
• Docket Number: No. B-6974,B-6974
• Court: Texas Supreme Court
• Parties: Lorna ZOBEL et al., Petitioners, v. Jose SLIM, Trustee et al., Respondents.

Page 362

576 S.W.2d 362

Lorna ZOBEL et al., Petitioners, v. Jose SLIM, Trustee et al., Respondents.

No. B-6974.

Supreme Court of Texas.

Dec. 29, 1978.

Rehearing Denied Feb. 14, 1979.

Werner & Rusk, John C. Werner, Houston, for petitioners.

Dow, Cogburn & Friedman, Edmund L. Cogburn and K. Gregory Erwin, Houston, for respondents.

DENTON, Justice.

This is a trespass to try title suit brought by Fred J. Zobel, his wife, Lorna E. Zobel, and Helen M. Decker (hereinafter referred to as the Zobel plaintiffs) against Jose Slim, Trustee and Erwin Hill, Trustee (hereinafter referred to as the Slim defendants) for five acres of land located in Harris County. The trial court granted the Zobel plaintiffs' motion for instructed verdict and rendered judgment that the Zobel plaintiffs recover title and possession to the five acres described in the judgment. The court of civil appeals reversed and rendered judgment that the Zobel plaintiffs take nothing. 552 S.W.2d 899. We reverse the judgment of the court of civil appeals and remand the cause to the trial court.

The Zobel plaintiffs claim the five acres through a chain of title originating with a 1846 patent from the State of Texas to the heirs of George Childress. The patent covers 1,920 acres. There are three distinct chains of title under the patent. The three chains merge in H. Masterson at the beginning of the twentieth century. Since one of these chains establishes title for the period of time in which all three chains run, it is unnecessary for the Zobel plaintiffs to rely on two of the chains of title. These two chains will not be discussed in this opinion.

In 1846 Governor Henderson patented 1920 acres to the "heirs of George W. Childress." The patent is recorded in the Harris County Deed Records and the land is described therein by metes and bounds with reference to adjoining surveys, trees, posts and the Houston and Montgomery Road. In the same year D. W. Harris, purporting to act as the administrator of George Childress' estate, purported to sell the 1,920-acres for $200. A chain of title through 1894 follows the administrator's deed. Sometime before 1874 the purported heirs of George Childress brought suit to cancel the administrator's deed. In 1894 the District Court of Harris County rendered judgment cancelling the administrator's deed and awarding the heirs title to 1,668 acres of the 1,920-acre tract. The 1894 judgment, discussed more fully below, recites that a 100-acre tract claimed by a Mr. Knigge and a 152-acre tract claimed by a Mr. Schroeder were not included in the judgment because Knigge and Schroeder had established title to the two tracts by limitation. An examination of the descriptions in the Knigge and Schroeder deeds reveals that the five acres in controversy in this suit are not within the land conveyed to Knigge and Schroeder.

In the Childress heirs' lawsuit, the court appointed an attorney to represent those defendants who were not present at trial. The 1894 judgment assessed as costs of the suit the $200 fee for the court-appointed attorney against the heirs. The sheriff executed on the land awarded by the judgment. The subsequent sheriff's deed to J. R. Masterson and J. S. Stewart, also discussed more fully below, recites that the grantees were the highest bidders at the execution to pay the $200 attorney's fee, and conveyed to the grantees the entire 1,920 acres for $200, with reference to the 1894 judgment for a full description of the property.

In 1897 J. S. Stewart conveyed his full interest in the 1,920 acres by general warranty deed to H. Masterson. In the same year, J. R. Masterson conveyed his full interest in the 1,920 acres by general warranty deed to H. Masterson, excepting the 100-acre Knigge tract and the 152-acre Schroeder tract.

The chain of title from 1897 to the present includes a 1910 deed from R. T. Adkins and W. A. Roberts to C. W. Hahl and Company, a partnership, and a 1914 deed from C. W. Hahl to C. W. Hahl Co., a corporation. The 1910 deed excepts five specific tracts of land included in the Childress Survey and the 1914 deed excepts one specific tract of land and all of the tracts of land conveyed to C. W. Hahl by Adkins and Roberts that had been previously conveyed by Hahl. Although the 1910 and 1914 deeds specify the volume and pages where the deeds to the six specifically excepted tracts are recorded in the county records, the records of these six conveyances were not allowed into evidence.

In 1921 C. W. Hahl Company conveyed the following property to Bertha Zobel Sheeran:

(T)he South five acres out of Block # 2 out of the third Subdivision of the George W. Childress Survey, as per plat of same recorded in Vol. 327, Page 325 of the deed records of Harris County.

Fred J. Zobel and Helen M. Decker claim the described five acres as the children and only heirs at law of Bertha Zobel Sheeran, who died intestate in the 1950's.

The first issue involved in this case is whether, as a matter of law, the Zobel plaintiffs established the heirs of George Childress as their predecessors in title. The court of civil appeals held, as a matter of law, that the Zobel plaintiffs failed to establish such heirship. We conclude that heirship was established as a matter of law.

The Zobel plaintiffs introduced into evidence the 1894 judgment entered in the lawsuit between the purported heirs of George Childress and the persons claiming title under the administrator's deed. The judgment states that the suit was prosecuted "in the names of the heirs at law of George Childress . . .," and recites the names of the plaintiffs who were awarded title to the disputed property. The Slim defendants presented no evidence rebutting these recitations, but they claim that the recitations are conclusory, self-serving, made after descent had been cast and therefore inadmissible hearsay under Byers v. Wallace, 87 Tex. 503, 28 S.W. 1056 (1894); Walker v. Barrow, 464 S.W.2d 480 (Tex.Civ.App. Houston 1971, writ ref'd n. r. e.); Slattery v. Adams, 279 S.W.2d 445 (Tex.Civ.App. Beaumont 1954), Aff'd 156 Tex. 433, 295 S.W.2d 859 (1955); Smith v. Lynn, 152 S.W.2d 838 (Tex.Civ.App. San Antonio 1941, no writ).

Under a well-recognized exception to the hearsay rule, the recitals in an ancient document are admissible as evidence of the facts recited, provided that the instrument is over thirty years old, comes from proper custody, and is not suspicious in appearance. Magee v. Paul, 110 Tex. 470, 221 S.W. 254 (1920); Bendy v. W. T. Carter & Bros., 269 S.W. 1037 (Tex.Com.App.1925, jdgmt adopted); Moore v. Horn, 359 S.W.2d 947 (Tex.Civ.App. Beaumont 1962, ref'd n. r. e.); C. McCormick & R. Ray, Texas Practice: Evidence §§ 1372-1375 (1956). The 1894 judgment meets these requirements and qualifies as an ancient document admissible as evidence of heirship. The cases relied on by Slim defendants are distinguishable in that they do not involve recitals of heirship in a judgment entered in a lawsuit in which the court had to determine heirship in order to grant relief.

As a practical matter, there is usually no other way to prove the heirship of a person who died in 1836 than by the recitations in ancient documents. The 1894 judgment is particularly reliable because it had to determine heirship in a contested proceeding. We therefore hold that, in the absence of rebutting evidence, recitations of heirship in an ancient judgment entered in a lawsuit that had to determine heirship in order to grant relief establish heirship as a matter of law. Cf. Sydnor v. Texas Savings & Real Estate Inv. Ass'n, 42 Tex.Civ.App. 138, 94 S.W. 451 (1906, writ ref'd); Ardoin v. Cobb, 136 S.W. 271 (Tex.Civ.App. 1911, no writ).

As a part of their chain of title, the Zobel plaintiffs rely on an 1895 sheriff's deed to J. S. Stewart and J. R. Masterson. The second issue in this case is whether the 1895 sheriff's deed which recites that $200 had been paid for the property, is void because the sheriff's return recites that the consideration for the property was not paid. The court of civil appeals did not address this issue. We conclude that the sheriff's deed is valid.

The December 4, 1895 sheriff's deed to J. S. Stewart and J. R. Masterson recites that, pursuant to a writ of execution issued by the district court in favor of the court-appointed attorney for costs due in the Childress heirs' suit, the sheriff levied on the property described in the 1894 judgment on November 3, 1895, and sold the entire property at a public sale to Stewart and J. R. Masterson for $200 on December 3, 1895. The sheriff's deed expressly acknowledges the sheriff's receipt of the $200. The sheriff signed the deed and the county clerk filed and recorded it in 1897. However, the sheriff's return entered in the execution docket of the district court recites that the property patented to the Childress heirs was levied upon on December 1, 1895, and sold to Stewart and Masterson on January 7, 1896 for $200. The sheriff's return states that the $200 was never paid. A deputy sheriff signed the return. Stewart and Masterson filed a motion entitled "Motion to Correct Sheriff's Return on Execution and for Sheriff to Deliver Deed to Purchasers." The motion states that Stewart and Masterson had paid the $200 directly to a court-appointed attorney, but the motion was never ruled on by the court.

The Slim defendants contend that the sheriff's deed is void because the sheriff's return recites that the consideration was not paid. However, if the recitals in a sheriff's deed and the recitals in his return conflict, then the recitals in the deed control. Holmes v. Buckner, 67 Tex. 107, 2 S.W. 452 (1886); Tanner v. Grisham, 289 S.W. 146 (Tex.Civ.App. Eastland 1926), Rev'd on other grounds, 295 S.W. 590 (Tex.Com.App.1927, holding approved); Moore v. Miller, 155 S.W. 573 (Tex.Civ.App. San Antonio 1913, writ ref'd). The rationale for this rule is that a sheriff is presumed to have done his duty. White v. Jones, 67 Tex....