30 Tex. 411 | Tex. | 1867
This is an appeal from a judgment of the district court, rendered in an action of trespass to try title for a half league of land in Navarro county. The appellee brought his suit against the appellant, Jacob Eliot, in 1857, to the spring term of the district court, and at a subsequent term of the court he amended his pleadings, by introducing two new jiarties defendant, William Croft and
It appears by the record, that on the 11th day of October, 1835, the government of Coahuila and Texas, by her commissioner, George Antonio Uixon, in Burnet’s colony, granted to John Peoples, who petitioned to become a colonist as Jehu Peoples, a league of land in said colony, situated on Richland creek, a southwest branch of the Trinity,
The defendant, Jacob Eliot, the only real appellant in this court, in his answer, insists that he is the legal owner of the John or Jehu Peoples league of land, and makes this exhibition of title, to wit: by deed from John or Jehu Peoples, bearing date the 12th day of November, 1850, duly recorded in Navarro county; also by deed, bearing date the 25th day of May, 1852, from the surviving wife
In the progress of the trial below, various questions were raised as to the admissibility of testimony, and the rulings of the court upon these questions, in admitting and excluding testimony, are assigned for error in the record.
The appellant’s counsel assigns for error the admission of a deed of conveyance from John or Jehu Peoples (for we must regard John and Jehu as the same identical man, from the pleadings and proofs of both plaintiff and defendant) to ¡Richard Sparks. The objection of defendant’s attorney to the introduction of this proof was, that it described the land therein attempted to be conveyed as lying on Red Land bayou, southwest of Trinity river, instead of on Richland creek, a southwest branch of the Trinity, as set forth in the grant to John Peoples. But the conveyance goes on to recite, that it was the northeast
It is also objected, that the court judged erroneously in allowing the deed made by the administrators of Bichard Sparks, in obedience to a decretal order of the chief justice of Nacogdoches county, to the plaintiff, Madison G« Whitaker, as well as the transcript of the proceedings of the said county court, showing the foundation of said decretal order, to go to the jury as evidence or proof in the cause. Upon this objection at the trial to the admission of this proof, and upon the assignment of error, the question is raised as to the jurisdiction of the county court, and the power of the chief justice to enter the decree ordering the administrators to make the deed. The proceeding in the county court of Nacogdoches county was founded upon article 1313 of the statutes, (Paschal’s Dig., p. 315,) passed 20th of March, 1848. This section has been pronounced, ex cathedra, so to speak, as the only section of the statute law under which litigation can be allowed in the probate court. Be that as it may, this section certainly confers, pro hac vice, upon the probate judge an equitable power, and it has to be exercised according to the rules and principles of equity. Every intendment must be indulged in favor of the 'correctness of the action of the chief justice
In initiating it in that court, the complainant, Madison G. Whitaker, stated in his petition that Richard Sparks, on the 17th day of Bovember, 1836, made and delivered to him a title bond, or instrument in writing, in which he bound himself to convey to the complainant, for a consideration therein acknowledged, “a league of land, so soon as the land office opened and the title for the same could be made by a commissioner, or some person authorized by law to make the same; which said land was to be located on the west side of the Trinity river.” He further alleged, (the said Richard Sparks having acquired by purchase, in the meantime, the northeast half of the Jehu Peoples head-right league, west of the Trinity river,) that the said Richard Sparks afterwards, “in his lifetime, attempted to make a partial compliance with his said bond, by conveying to the petitioner, on the 21st day of March, 1838, the northeast half of a league of land granted to Jehu Peoples, in the year 1835, by George A. Bixon, commissioner, which grant was described in his deed as having been made to one John Peoples, instead of to the said Jehu, the actual grantee.” Both of these instruments of writing were made proferí of in the petition; and, regarding the latter as defective and i nsufficient to make the feoffment complete, he sought the aid of that court, in the exercise of an equitable power under the statute, to invest him with the complete fee. Courts of equity have always regarded an imperfect or defectively executed deed'as a mere title bond or an executory contract, which will be specifically enforced by such courts, and carried into full grant against the covenantor. Por just such cases of title bonds, executed by testators, or intestates, in their lifetime, the legislature has seen fit, in its wisdom, to invest the county court with a concurrent jurisdiction with the courts of general common law and equity jurisdiction to grant relief. We think,
There are questions raised by the third and fourth assignments of error by the appellant which demand some notice. A writing, purporting to be an agreement executed between the co-defendants, Eliot and Croft, in the year 1852, which agreement professes to convert what is called by them an adverse holding by Croft against Eliot of some blocks of ground in Corsicana, which is situated on a part of the league, into an amicable holding, Croft binding himself to bring suit to oust other adverse holders upon the league, and to get the title to the league generally settled for a consideration therein set forth, and the said Croft agreeing to hold the land, as a tenant, for five years, [was excluded from the jury, and the point saved by exception.] We cannot perceive for what purpose such an instrument could be introduced. Such an instrument, if admitted, would have conduced to show neither an actual possession, adverse or otherwise, by' Croft, nor
In refusing to admit the introduction of McKie as a witness, after the testimony had been closed and the argument of counsel had been commenced, the court was but exercising a discretion which is fettered by no known rule of law or of practice. The individual had not been summoned as a witness in the cause, and the party took the risk, upon his mere verbal promise, that he would be present before the testimony closed. Certainly, there was not such an abuse of discretion in refusing the application to admit his testimony, at such a stage of the cause, as would authorize a revision of the exercise of that discretion by this court. Besides, from the affidavit of the proposed witness himself, filed upon the motion for a new trial, his testimony would not have served to elucidate the issues involved in the investigation.
In reference to assignment of errors in the charges of the court, we deem it unnecessary to go into an analysis of those charges, as it is quite apparent that those charges were more favorable to the appellant than the facts seem to us to warrant. The charge, that the jury “may look to any paper that maybe referred to in the deed from Peoples to Sparks, to identify the land,” could not be misleading. For, if no paper, introduced as evidence, was referred to in that deed, they could have no paper of that character as a predicate for any conclusion as to the identity of the
Having disposed of the antecedent matters, the question remains to be settled, did the defendant below, and the appellant in this court, sustain, by his proof, his defense of the-statute of limitation of three years by actual, peaceable, continued, adverse, and exclusive possession, under title, or color of title, from the sovereignty of the soil? If the defendant had such actual adverse possession continuously for a period of three years before the institution of the plaintiff’s suit, under title, or color of title, from the sovereignty of the soil, then the plaintiff’s superior title will not avail him in this possessory action, and his remedy is gone. What actually constitutes the character of possession contemplated in this act is a mixed question of law and fact, and it is sometimes difficult, in particular cases, to determine what is a title, or color of title, from the sovereignty of the soil. This court has at various times defined it in reference to the numerous cases which have been before it. But.the facts of all the cases are quite variant, and hence the impossibility of establishing any fixed and definite rule as applicable to all. In this case there was a grant from the sovereignty of the soil of the land in controversy to John or Jehu Peoples. That grant was recorded in the county of Eobertson, where the land was situated. This was constructive notice, according to the laws of registration, of the appropriation of this particular portion of the public domain. John or Jehu Peoples conveyed one moiety of that grant to Eichard Sparks, which was also recorded in the same county of Eobertson in 1838, in which county the land was still situated. This, too, was constructive notice to all the world that the title had passed out of John or Jehu Peoples, and of which fact every one is presumed to have knowledge, and from a want of which actual knowledge no one should be permitted to set up the plea of ig
We cannot concede, then, from the facts of this ease, that the appellant has a title, or color of title, dedueible from the sovereignty of the soil, without conceding at the same time that the acts of men, which operate in fraud of the law, may be connived at and tolerated by the courts of the country, and left unrestrained and unchecked by the very laws enacted for their government. We conceive therefore that no such title, or color of title, was possessed by the appellant, and the statute of limitation of three years, even if he had actual possession of the land in controversy for more than that period before the institution of the suit of the appellee, could not avail him in his defense. And although he relied upon the statute of five years’ limitation in his defense, the evidence in the cause does not sustain his plea. We discover no fatal error in the finding of the jury, nor in the rulings and judgment of the court. Wherefore, the judgment of the court below is
Affirmed.