70 Tex. 217 | Tex. | 1888
Appellee, as plaintiff in the court below, brought suit on October 8, 1884, in the ordinary form of trespass to try title, against B. R. Grimes, John Moore, D. E. E. Braman and Y. J. Poole, to recover possession of an undivided half of one-third of a league in ¡Matagorda county, patented to Rufus R. Smith, assignee of .John H. Updike, on February 23, 1875; and on December 11, ¡1885, filed amended original petition describing the land more ¡accurately, but making no other change in the suit. Appel
These findings are not excepted to, though in argument appellants challenge their correctness to some extent.
The trial was had near forty-nine years after the probate of the will, and the last act appearing in evidence in the administration of the testator’s estate was in November, 1853. These periods are long enough to compel the presumption that the Specific legacies had been satisfied and that administration had ■qlosed. (1 Greenl. Ev., sec. 39.)
The case of Aklin v. Paschal, 48 Texas, 147, in no way controverts the right of a devisee under these facts from asserting his rights in suit. In the case cited the holder of a money legacy was refused the privilege of intervening in a suit by the heirs of the testator to recover property lapsed by the extinction of the corporation taking under the will. The matters of defense may be treated together and their legal effect examined.
The defendant offered a certificate from one George A. Davenport, purporting to be judge of the court of probate of district of Norwalk, Connecticut, giving a copy from his record of the admission to probate of the will June 24, 1842, and further certifying that at the time of giving the certificate no other had been appointed to the administration, and that Stephen 'Smith had qualified and bonded as executor. The certificate 4s dated August 4, 1853. As offered it was not an examined ■copy produced by a witness (1 Green, on Ev., sec. 508), nor was it certified as required for authenticating records and judicial proceedings under the acts of Congress. (U. S. Rev. Stats., secs. 905, 906.) In connection was offered a receipt dated at New York, September 1, 1853, by Stephen Smith, exec.-utor, etc., for four hundred and fifty-six dollars and ninety-one ■cents, from S. B. Brigham, the executor acting in the Matagorda county court, together with an account current of said
The defendants then offered D. E. E. Braman, one of the defendants, to prove that he, under contract with Stephen Smith for an interest of one-half,"had obtained duplicate certificates for two one-third league certificates owned by the estate, one of which was the Updike certificate; and, at his own expense and personal labor, had them located and obtained patents; and, in further execution of said contract, that he and ■Smith had made partition, by which Braman took the Updike '-survey (in controversy), and Smith, executor, the other; producing Smith’s deed for the tract in suit, signed by him as executor, and as one of the heirs of the testator.
This testimony was all excluded, the certificate of the Connecticut probate judge as incompetent, and the contracts for location, etc., for want of authority in Smith to make the contract. The contract for locative interest depended upon whether the locator dealt with the owner or under his authority. It was not in evidence that Smith was the qualified executor, but had it been proved, a like want of authority to sell was in the will limiting his powers and placing the power and iduty to sell in the Texas executors. Of this want of authority Braman, taking under an executor, was charged with notice from the terms of the will. Braman then stands in the attitude of a mere locator without a contract affecting the ownership x>f the certificate.
It is not an open question that the equities of the locator of a fland certificate without contract with the owner do not extend ito fixing a right in the land secured by the location, or even to ■a lien upon it for his compensation. In Sypert v. McGowan, 28 Texas, 641, the rule of decision is stated by Smyth, Justice. “It has been settled by this court that the locator could acquire ■no interest in the land simply by having located the certificate .and having it surveyed. The custom of the country to give ¡what is called a locative interest in the land to the person who ¡located it, as compensation for his services, can not create or ¡furnish the terms of a contract to bind the owner of the certificate.”
The owner would be liable to the locator to pay the reasonable value of the services rendered, and to pay the money expended, with interest. These equities, however great, do not. affect the question of title to the land, and would not defeat the owner in an action for the land against the locator. The testimony of the defendants was properly excluded. The plaintiff having exhibited title to the half interest in the land' sued for, which would not have been defeated even had the testimony offered by the defendants been admitted, the defendants have suffered no damage by its exclusion.
It is noticed that in the judgment there is an order for partition. It is probable that all the parties interested are not before the court.
There being no error in the judgment it is affirmed.
Affirmed.