69 Tex. 84 | Tex. | 1887
This was an action of trespass to try title brought by appellee against appellant. Plaintiff alleged that he was the owner of an individual one-third interest in the land in controversy; and that he did not know who owned the other two-thirds. He prayed for the recovery of the possession of the entire tract, unless the defendant showed title to the other two-thirds, in which event he prayed for a partition. The pleas were a general denial, not guilty, the statute of limitations and improvements in good faith. Neither party set forth his chain of title. The plaintiff obtained judgment for one-third of the land and for partition.
The plaintiff having introduced in evidence a deed from one Nance to E. S. Hurlburt & Co. to a one-third interest in the survey in controversy, was permitted over the objection of the defendant, to testify that the firm of E. D. Hurlburt & Co. was composed of E. D. Hurlburt and himself. The admission of this testimony is assigned as error. The ground of objection was that the fact had not been alleged in the pleading. The objection was not well taken. When a plaintiff in an action of this character pleads specially his title and any link in the chain is dependent upon a fact resting in parol, such as heirship, etc,, that fact should be alleged. Otherwise he will not be permitted to prove it. But should the petitition be in the statutory form as in the present case, he will be permitted to adduce any com-
Each party deraigned his title from the State, and the defendant showed a clear right to one undivided two-thirds interest in the land in controversy. As to the one-third interest claimed by plaintiff, which was the matter actually contested, the title of both emanated from one John T. Smith, as the common source. In 1873, Smith conveyed to S. L. Hanna, and plaintiff intro, duced a consecutive chain of conveyances from Hanna down to himself. In 1882, Smith again conveyed a third interest to one Twombly, who was then the owner of the other two thirds, and he latter subsequently conveyed the entire tract to the defendant. The deed from Smith to Twombly was in form a quit claim and contained no clause of warranty. Defendant claims, however, that Twombly bought without notice of the previous conveyance of Smith, and bought the land purporting to be conveyed, and not a mere chance of the title. The deed from Smith to Hanna appeared from its file mark and the clerk’s certificate to have been filed and recorded in 1875, in Tarrant county, and re-recorded on the sixteenth of August, 1883. Twombly’s deed from Smith was recorded April 22, 1882. Defendant’s deed from Twombly, was dated June 5, 1883, and was recorded June 8, 1883, before the re-recording of the deed to Hanna. Defendant testified that he paid Twombly the full value of the land at the date of the deed, and that he had no notice of any adverse claim.
The court ruled, in effect, that Twombly and defendant had constructive notice of the conveyance to Hanna at the time of their respective purchases, and instructed the jury to find for plaintiff. In this, we think, there was no error. The deed to Hanna, as shown by the" statement. of facts, was recorded in 1875, but why it was re-recorded the evidence does not disclose.
The defendant offered to prove by a witness that at the time of Twombly’s purchase from Smith, he, as Twombly’s attorney, examined the record of deeds of Tarrant county, and that no . deed from Smith to any one else was of record. This being objected to, was excluded by the court on an exception taken. It is now insisted that this was error.
If it be admitted that it was competent to show that the clerk’s certificate was false, it must be held that the proper evidence was not offered for that purpose. To permit a witness not in charge of the office containing the registry of deeds to testify that no such record existed would be to introduce an unprecedented and dangerous practice. It is said by the supreme court of Hew Hampshire: “When a party desires to prove the negative fact that there is no record, he must do so in the usual way —by the deposition of the proper officer or by producing him in. court so that he may be sworn and cross examined as to the thoroughness of the search made. If the summoning of such officer to testify in relation to the public records at the call of a suitor, shall be found impracticable by reason of interfering with his public duties, the remedy must be found in further legislation.” (Bullock v. Wallingford, 55 N. H., 619.) The principle applicable to the point before us is, that the custodian of the records is the proper officer to prove that a record does not exist. We conclude that the court below did not err in excluding the testimony.
But it is insisted that the judgment is erroneous, because it is not supported by the verdict. The judge instructed the jury without qualification to find “for plaintiff one-third of the land described in the petition.” The verdict was: “We the jury * * find for plaintiff one-third of the property in dispute and ten dollars for rent of same.” How it is contended on behalf of appellants, that by “property in dispute” is meant, the one-third
We have not considered the assignments of error in detail; but the determination of the questions already passed upon is decisive of the case in this court. There was no error in the rulings of the court upon the introduction of the testimony; and upon the evidence adduced, neither defendant nor his vendee could claim to be a bona fide purchaser and therefore plaintiff was clearly entitled to recover.
The judgment is therefore affirmed.
Affirmed.
Opinion delivered November 18, 1887.