53 Tex. 305 | Tex. | 1880
The superiority of Roosvelt’s title over that of Davis was settled on the former appeal. The muniments of title adduced in evidence on the second trial are the same which were passed on before by this court, and we regard the questions argued by counsel for Davis as having been substantially settled.
In regard to the alleged want of proper parties and the failure to present the purchase money notes at maturity at the place where made payable, and the question as to when time is of the essence of a contract, we remark that this is not an equitable proceeding on the part of Roosvelt to have a contract rescinded. He is simply enforcing his legal right to the land, and the defendant, to defeat a recovery, should either tender the unpaid purchase money, or otherwise proffer to do equity.
The assignments of error of the intervenor, L. D. James, present questions not considered on the former appeal.
The first assignment of error presents the question of the sufficiency of the seal affixed by a commissioner of deeds of the state of Texas for the state of Mississippi, in 1868, to his certificate of the acknowledgment of two different deeds. The impression of the seal shows no star in the center, and the name of the state (Texas) appears to be written on the impression, not engraved. The answer is that there was no statute in force at the time the certificate was made, requiring the commissioner to provide for himself a seal with a star of five points in the center. There was such a statute in regard to commissioners in the Chocktaw, Chickasaw, Cherokee and Creek nations of Indians, and there is now such a statute in regard to commissioners generally. Pasch. Dig., art. 3771; R. S., art. 547. At the time when the certificates were made, the form of the seal does not appear to have been prescribed, and the one used cannot be pronounced insufficient.
“8. The decree of the district court of Louisiana does not in itself assume to convey, or direct said Watson to convey, any particular land in the state of Texas, but the jury may consider of said decree, and the recital in the deed from Watson to James, relating to said decree, in determining the ownership of said Mary K. James in the land, and give it such weight as they may think it entitled to. In regard to the ownership of the said Mary K. James in the land, the jury will take into consideration the evidence in relation to the consideration paid, and by whom paid, in the conveyance from Cornell to said Watson; the trust agreement made in 1848, and its terms; the decree of the district court aforesaid; the mortgage deed and its terms, made by Joshua James and Mary*316 K. James to Oliver Matthews, together with all other evidence introduced; and i£ the jury believe from all the evidence and the circumstances connected therewith, that at the time the land in controversy was conveyed by Cornell to Watson, the said Mary K. James was the equitable owner of said land, and that said Watson held the legal title in his name in trust for her; and if the jury, from the evidence, further believe that said Mary K. James afterwards died, leaving the interveuor as one of her heirs, they will find for the intervenor.”
In no part of the charge was the plaintiff allowed to recover as against intervenor, on the ground of absence of notice of his rights. Clearly the intervenor cannot complain of the refusal to give his special instructions as to notice. Under this assignment of error, counsel for intervenor submits numerous propositions, the relevancy of which to that assignment does not appear.
The third assignment of error, and the third and fifth errors embraced in a second assignment of errors, are claimed to be fundamental. They present the failure of the court to instruct the jury as to intervenor’s rights if the land was community property of James and wife, instead of her separate property, and the failure to instruct them what it takes to constitute a trust relation, and what an equitable title. As the intervenor asked no instructions on these matters, our opinion is that he is not entitled now to demand another trial merely because the charge did not embrace a full presentation of the law. The court might, with propriety, have given instructions as to the effect of the documentary evidence, and as to what would constitute an equitable title in Mrs. James. The intervenor, however, appears to have allowed the case to go to the jury under a charge, submitting to them whether, under “ all the evidence and circumstances,” Watson held the legal title in trust for her, and we do not think the defects in the charge can now avail him.
The fourth assignment of error objects to the overruling the motion for new trial, claiming that the verdict and judg
The alleged trustee did not convey this land to Mrs. James, but did convey it to Joshua James. What trusts attached to the land in the hands of Joshua James, was a question dependent not on the decree alone, but to be determined from other facts tending to explain the transaction. The question of fact as to the equitable interest of Mrs. James in the land was submitted to the jury and decided against intervenor, and we cannot say that the court erred in refusing to set that verdict aside.
The only other errors assigned are the first and second of those claimed to be fundamental, and are substantially disposed of by what has already been said as to the superiority of Roosvelt’s legal title, and as to the purport of the charge precluding plaintiff from recovering as an innocent purchaser without notice. Our conclusion is, that the intervenor has assigned no error entitling him to claim another trial.
If, in fact, Joshua James held the land in trust for his wife, who was equitably the owner thereof in her separate right, she joined with her husband in mortgaging the land to Matthews. The intervenor claiming as her heir a purely equitable right to the land, should not be allowed to dispossess the holder of the legal title, acquired under the mortgage, without first doing equity by paying off the mortgage debt.
If, however, the land was community property of Joshua James and wife, then it was competent for the husband as the survivor of the community to sell the land in payment of a community debt. In either case, the intervenor was not entitled to recover.
Affirmed.
[Opinion delivered April 23, 1880.]