*1
Reports,
Yol.
Texas
Court
such,
the term
after
of-
also
ten days
adjournment
courts shall
have
their findings
causes
which to
tried,
prepare
at which said
may
court;
when
of
of
cases tried
fact and conclusions
law
before
may
demand is made
And
terms of office
judges
therefor.
whose
at which
of the term
said
expire
adjournment
before
of
after
tried,
days
said case is
or
said
of
period
twenty
during
facts, bills
the term,
of
such
of
adjournment
approve
statement
may
law,
file such
facts and conclusions
exceptions,
findings of
noted
1907,
as above
is to be
provided.”
(Laws
446.)
p.
a state-
filing
order to
obtain
after
twenty days
adjournment
to
ment of facts or bills
an
entered
order must be
of exception
effect;
but not so as
his
to the
conclusions
filing by
judge
be filed
and law.
shall
fact
The statute
requires
request
put
Hence
that the
shall
and law.
judge
his
of fact
make
conclusions
days
without
order
file
in ten
an
he has the
his conclusions
power
after
the action of
the court. We conclude that
adjournment of
fact
trial
his conclusions of
judge
failing
refusing
file
and law is
where
subject
review
Civil Appeals
so, the
to be re-
it is found that he has not done
ought
versed.
In
fail
mandamus
regard
third
to see how
question, we
applicable
days
elapsed
would be
the case. After ten
court,
of the trial
file
adjournment
power
judge
of fact
law
do
how in so
conclusions
We
not perceive
ceases.
a time a
short
mandamus suit
be instituted and
prosecuted
could
Besides,
trial
after
recovery.
adjourn-
ten
judge having
days
conclusions,
ment to
who has been
in the suit
file
cast
party
until
elapsed
not know
timé has
that he will not do so.
So
is no
think there
for the error
to reverse and
remedy
except
we
remand
trial.
the cause
new
Company
Texas
et
Houston
Oil
al.
Walter
E.
al.
Kimball
et
1, 1909,
January
December
No.
Decided
Deed—Innocent
Purchaser—Burden
Proof.
1.—Unrecorded
(Hartley’s Digest,
art.
Under the law in force in
Act of December
1836)
the burden is
unrecorded at
those
the time
.another,
conveyance by
grantor
subsequent
their
of their deed
to show that
purchaser
bought
subsequent
notice
when he
he did
land.
Oil
a valuable consideration
Kimball v. Houston
pay
Company,
not
100
101).
Texas, 336,
(P.
reaffirmed.
Forgery.
i$.—Evidence—Deed—Affidavit
properly
of a recorded deed was
admitted in evidence
certified
without
A
execution,
established,
being prima
though the
facie
of its
adverse
proof
where
did not call such affidavit
forgery,
affidavit of
party had filed an
object
admissibility
its
the deed
offered nor
of the court when
the attention
for
original,
though objecting
proof
execution
want
101, 102).
(Pp.
land.
identify the
it did not
ground that
Houston Oil ICimball.
1910-1
3.—Same—Burden of Proof.
admission in evidence
a recorded
without
its execution
*2
(P. 102).
preclude
forged.
does not
from proving
the adverse
that it was
party
—Same—Forgery
Deed—Sufficiency
4.
of
of Evidence.
forgery
Evidence
and
a
considered
held insufficient to raise the issue
diced
require
recorded
admitted in
to
its
to
evidence or
execution
submitted,
be
consisting
by
grantee
such evidence
of an absence of claim
during
the land
period only
general warranty,
a short
conveying
and the addition to his
on
special
of a
warranty against any
appearing
the title
incumbrance to
102, 103).
(Pp.
on record.
5.—Same—Nonclaim.
holding
conveyance
Proof
those
recorded
to land had made no other
by
long period
claim
no
forgery
to title for a
evidence of a
title
was
(P. 103).
grantor.
their
Appeal—Error Apparent
6.—Practice on
on Face
Eecord.
only
can
for
is
error which
cause
reversal
one
be
which can be ascertained
by
“apparent
record.
error
examination
on the face of the record”
reversal,
may
ground
although
be
for
assigned,
made
must be
one,
as,
seen,
being readily
fundamental
such
lies
the base and foundation
proceeding
104).
affects
necessarily.
(Pp.
—Limitation—Charge.
7.
defendants,
land, pleaded
in an
Where
action
the statutes of limitation
three,
years,
five
ten
a submission to the
of the issue of title under
possession
relating
years only
statute
to
for three
was a withdrawal of the
years possession;
issues as to five and
charge
ten
but
sustain
such
where
assumed that
limitation,
the title
defendant was
to
years
sufficient
three
prejudiced by
could
defendant
not be
the exclusion of the
posses-
issues as to
104, 105).
longer period.
(Pp.
sion for a
by
8.—Limitation—Possession
Tenant.
neither pleading
Where there was
support
evidence to
limitation
particular
large survey
of a
occupied by
tracts out
tenants
defendant nor
any
any
holding
possession
evidence that
tenant
under them claimed
of the entire
failing
survey, there was no error in
to submit
issue
toas
limitation in
possession
favor of
by
by
virtue
held
their
(Pp.
tenants.
106).
9.—Same.
possession
by
land
tenants
grantor
Evidence of
held insufficient
under defendant’s
examined
support
and
submission
a claim of limitation based
thereon or require a
through
issue of defendant’s title
limitation
possession
tlie
105, 106).
(Pp.
grantor.
—Deed—Description.
conveyed,
addition
Where a
to its
the land
referred
original grant
original plat
thereof
to
General Land
and to the
and field
*3
conveyance.
right by
of
No issue of insufficient record
prevail because
his better
holding
purchaser or those
under him
of the
of the second
of title
notice
title
be involved.
by
insufficiency
his deed would
reason of the
the
108, 109).
(Pp.
15.—Deed—Recitals.
conveyance
a
in a deed offered in
The refusal
exclude a recital of
former
merely descriptive of
was not erroneous where the recital was
the
(P. 109).
sold, furnishing
by
data
it could be identified.
—Acknowledgment—Certificate—Judge
Record—Validating
Court
Act.
conveyance
a judge
of land in Texas
acknowledgment of a
before
An
the
1845,
by
signature
of the
judge
attested
Supreme
of Louisiana in
was
seal,
signature
genuineness
and
character
his official
certificate
without a
attested
port
consular
the Act
Republic
a
of Texas for the
agent
consular
for
acknowledgment
Held,
attestation
a
if such
and
New Orleans.
unauthorized,
acknowledgment
defect in the
1718,
was cured
agent
was
1871,
acknowledg-
authorizing
taking of
Digest,
art.
Paschals
seal,
instruments
having
April
record
and the Act of
judge
court of
before
ments
acknowledgment of
same
recorded
where
validating the
such
passage of
in force at the time of the
accordance with
law
taken in
Act,
Louisiana
Court of
validating
a court
presumed
would be
109-111).
(Pp.
had a seal.
and
record
in an
Fourth District
Civil
for the
Appeals
Court of
Error
to the
County.
Hardin
appeal
the recovery
and others for
the oil company
and others sued
Kimball
affirmed
land,
appeal
This
on
judgment.
obtained
and
of
defendants,
error,
obtained writ of
who thereupon
McGown,
Martin,
Denman,
&
&
Lanier &
Franklin
Taliaferro
Nall,
The trialcourt erred in its charge
for
error.
plaintiff
the land de
to “find
for
them
for
jury
instructing
plaintiffs
for the plaintiffs
scribed
unless
should
they
find
petition,”
years limitations,
of three
error
upon
defense
which said
in law
court
“an error
hereby charged
assigned
trial
as being
record,”
they respect-
.
.
.
on
apparent
face
ask a reversal of the
fully
below and
remanding
Johnson, 94
Stats.,
1014;
for a new
Rev.
cause
trial.
art.
v.
Wilson
298;
Texas, 272;
Texas,
90
Co.,
v.
Hardin
Fuqua
Brewing
Pabst
97
1910.]
Houston-
oe Texas v.
Oil Co.
Ivimball.
582;
Texas,
Texas,
Texas,
Petty,
515;
57
Harris v.
66
&
v.
Scalfi Co.
Abbey,
State,
v.
95
whether
was a
the deed from Nelson to
for-
question
whether Parmer was
and without
purchaser
value
gery
material
conveyance
notice
tions in this case. These
from Nelson to Brown
prior
ques-
were
submitted to
questions
in its
court
There was evidence introduced
charge.
these
questions
the trial
should have been submitted
Texas, 336,
v. Houston
100
jury. Kimball
Oil Company,
cases therein cited.
In
of the facts of this
case, assuming
view
the purposes
that under
argument
the Act
the Supreme
construed by
Court,
burden
defendants
of innocent
purchaser
was on
deed from Nelson
prior
Brown, nevertheless this burden was
with
the evi
complied
whenever
dence showed
cent
reasonable
and that
that Parmer
an inno
probability
was not
purchaser,
probability
explained
reasonable
best
the conduct
parties
controversy,
reference to
land in
and it was
for the
error
refuse the
instruction.
requested
Fuller,
Fletcher v.
120
534;
U. S.,
Fletcher,
Fuller
Fed.
v.
44
Rep.,
34; United
v. Deveraux,
187;
States
90 Fed.,
Texas
& Lumber
Tram
Guin,
Co. v.
503;
Vol. GUI
Supreme
Reports, Yol. 103.
98
Texas
417;
P.
26
Graham
Neyland
Co.,
v. Texas Y.
etc.
Texas Civ. App.,
Bremond,
Texas, 457.
Hawkins,
C., 519;
1
U.
Cook
27
v.
v.
un-
and those
possession
evidence showed such
defendant
The
title
land in
establish
der whom it claimed of the
controversy
three,
in defendant
five and
statute of limitations.
year's
ten
634;
Texas,
v.
Robertson,
Texas, 138;
Cobb v.
99
Meade,
Gunter
78
Civ.
McGowen,
W., 112;
Rand,
v.
20
v.
9 Texas
Moore
S.
Williams
631;
v.
565;
El Paso
App.,
Hamilton,
Texas,
v.
28
City
Kimbro
Texas,
96
Bank,
The officer
authorized
one
not
taking
acknowledgment
being
to take same
admissible
1841,
under the
was not
Act
the deed
Act,
record under that
he was
and no
made that
being
judge
court of
was
seal,
record
the instrument
having
there-
as could be
fore
recorded under
certified
the Act
1846. The
an
evi-
recorded instrument
not admissible
improperly
was
4978;
5,
dence. Act of
Texas Land
Feb.
Pasch.
art.
Dig.,
7;
Williams,
Texas,
ed.),
v.
59;
Cyc.
(2d
of Law
7 Am. & Eng.
4615; Houk on
Dig.,
1846;
Pasch.
art.
Stats.,
Act of
Rev.
p.
Written Instruments, 303.
recitals
said
The
statement
the deed were inadmissible because
self
under
serving
parties
binding upon
deed, and
privity
defendants
and are
not claim thereunder
do
Bros,
251;
Texas,
it.
parties
Garcia,
Byers
Illg
Wallace,
Texas,
(cid:127)
her
testimony
witness as to
was stated to
what
Texas,
her
father was
hearsay.
Wallace,
Bros. v.
Byers
The court
prove
erred in
to allow defendants
refusing
Moore
witness Work the
and that he
F.
Judge George
standing
character
standing
for a number
was a
and served
lawyer of high
Moore
said
years on the
Bench of
State
ownership
one of
and asserted
defendant’s remote grantors,
paid
over and
all of
years,
many
taxes on
suit for
the land in
here
more
Ho.
exception
fully
shown
defendants’ bill
tending
referred to.
was admissible
referred to
testimony
to show
whom
the land
one of the owners of
improbability of
had
to which
title to property
claim asserting
title,
no
then sus-
and the
were facts
there
strong probability
ceptible
direct
from Helson
the deed
proof showing
was a
for value with-
forgery
that Parmer was not
purchaser
out notice.
discovered,
newly
material,
newly
discovered
trial, and same
due
at the
diligence
same
procure
exercised
*5
facts
trial,
could
known to
of these
procured at the
and all.
affidavit,
trial by proper
the court
motion
a new
and the motion
and the case continued
should have been granted
testimony
order to
defendants an
opportunity
procure
49
v. Forsythe,
to establish those facts.
& T. C.
Co.
Ry.
Houston
Texas, 178.
Martin,
S. M.
E.
Johnson
Presley
(J.
Easterling,
K.
D.
E.
Ewing
It is
Gordon,
error.
plain,
and W. D.
for defendants
counsel),
99
Co.
Houston Oil
oe Texas
v. Kimball.
1910.
J
doubt,
too
plain
exclusion
the trial court
implied
aof
controverted issue
fact,
one
decide either
jury might
way, can
be the error in
apparent upon
law
face
referred,
record, within the meaning
statute
to which we
very
for the
reason that
it can not be said to settle the
right
case,
in whole
law,
or part, as matter of
when the
might
have found the controverted issue either way. The authorities
are numerous.
precise effect
28 Texas
Clapp
Royers,
v.
Civ.
29;
App.,
International
Western Union
v.
29
Hays,
25;
Tel. Co.
Texas Civ. App.,
Maxwell,
L.
P.
294;
&
Co. v.
27
Civ. App.,
Texas
v. Beaumont
Burge
v.
223;
Carriage
47 Texas Civ.
Carrera
Co.,
App.,
Dibrell, 42
Texas Civ.
99; First National Bank of El Paso
App.,
Moor,
v.
34 Texas Civ.
v.
35 Texas
App., 476;
Lowenstein,
Metcalfe
619;
Civ. App.,
Neyland v.
Texas, 711,
69
714.
Bendy,
to burden of
of notice
was the
proof
payment
precise one adjudicated
Court on the former
appeal,
and it
the burden
elementary
once fixed
such a
proof,
shifts.
case,
Co.,
never
Kimball v. Houston
Texas, 336;
Oil
100
Hills,
v.
Clark
100 238-239; Couts, Texas, Truehart v. 378; Collier v. 92 Texas, 372, Texas, 222, 228; 1000, 1 1001. McMichael, Cyc., 46 use cultivation, or en adverse requisite possession, That whom anyone was held tenants of under joyment, limitation, required for the of time deraign, continuously length 471; Texas, 18 101 Ft. v. Wooldridge, see Worth D. C. Co. Ry. & 659; 187, 189, 190, 404, 177, 180, ed., Am. & 2d Eng. Law, Ency. 349, Texas, 51 Stats., Boyer, 3348; Tex. Civ. Fitch v. Sayles’ art. 834, 835; 350; 1 & Satterwhite Am. of Law Eng. (2d ed.), Ency. Texas, v. 61 166. Rosser, That act authorized an registry acknowledgment, Louisiana, record, of a court of certified before judge superior there, see Texas resident consul minister of the Republic of Hill v. 2777; 4978; Taylor, art. art. Paschal’s Hartley’s Dig., Dig., Texas, 295, who acted 298, 77 299. That the consular agent Act, see Dec. the seal of the effect deputy, consulate was legal Russell, 18, 1837, Laws, 1433, vol. v. Gammell’s Schunior p. is authorized 83 89. That officer Texas, principal where such, either acknowledgments, to take also take deputy may Law, name, 1 Am. Eng. Ency. the 2d or his own see & principal’s and other ed., 496, 497, cases from Texas pp. citing, among 83 Reed, Texas, 647; Carmichael, 82 v. States, Herndon v. Ballard Johnson, Texas, Schneider, Texas, 330; v. 355; Wert v. 64 Thompson Texas, 84 challenged deed, recital in the being part was plainly and an conveyed, inseparable part Southern but, not, its admission was without admissible, prejudice. if Fed., Choer, Pac. v. 114 Co. in part, objection That recital was at least so competent Galveston, & overruled, of it H. S. the whole was see properly ,98 394, 401; Texas, Dooley A. v. Jamison v. Gormley, Co. 91 Ry. Tullis, Texas, 240; v. Texas, 206, Railway 100 210; Moody, Tuttle v. Co., W., v. Evans-Snider-Buel 317; 91 S. & N. T. Co. Ry. Pecos Texas, 42 Texas Civ. 100 App., That or character testimony general reputation proposed for any F. irrelevant and George legally incompetent Moore offered, for the see purpose fortiori specific purpose, 678; Burnett, 576; W., 25 S. Redus v. Rankin Busby, W., 86; Coll., Ev., sec. 297. Crume, Roach S. Gillett’s motion, evidence, discovered newly That ground on the eve not seasonably presented, denied because properly why any showing diligence without of adjournment Co. v. earlier, Ry. Scarbrough, see Texas & N. O. presented was not Texas, 436. court. opinion Brown delivered the Mr. Justice suit in the District instituted this E. Kimball and others Walter of Texas Company Oil County of Hardin the Houston against Court and the Government of land others, granted recover league county. in said Kelson located of Coahuila and Texas to O. C. of trespass the usual allegations contained plaintiffs’ petition Oil oe Texas v. Houston Kimball. 1910-1 *7 to which was answered defendants not try title, by the aby plea of three, and the statutes limitation of and ten to guilty years, five which denial and of some plaintiffs replied by general disability of the plaintiffs. stated, case: Briefly are the facts of this following principal Kelson, land in claimed, O. from whom both owned the parties C. by deed executed 28th Kovem- controversy, on the duly day ber, Brown, entire tract deed was conveyed the to David which 13th March, day not recorded until 16tli 1842. day On March, 1838, Isom Parmer O. C. Kelson and delivered to executed a deed to him the was re- same tract land. This deed conveying 1842. corded on the February, in 23d proper county day each of said deeds. Payment of consideration in acknowledged below, Plaintiffs the court had a of transfers in chain consecutive Isom Parmer to their and defendants had such transfers father, from from David to Texas. Brown down Houston Oil Company outline, statement the case in presents general its foregoing other facts as be assignments relevant raised questions by to will error and stated be discussed in connection therewith. Plaintiffs in error that consider point this court request again before, on certified decided question, contending, now burden was upon the valuable plaintiffs prove paid Parmer consideration Kelson and did from not have notice of the deed Kelson Brown. We are the decision this court opinion in Kimball v. Oil Company, Houston correct qf an Act interpretation (Hartley’s article 2757 Digest) being 1836 which was in force when deeds from Kelson to Brown and from Kelson to Parmer were made. The first deed unrecorded when the second was the deed to Parmer the title conveyed executed, unless those who claimed under prove or that he to Brown should Parmer had notice the deed to when bought, Brown he not did valuable pay consideration the land. The first of error assignment by reads presented application as follows: “The court erred in jury special Ko. refusing charge by defendants, requested follows: ‘Should be- you from the herein that lieve evidence the deed from O. C. Kelson Isom introduced herein not in evidence executed and de- Kelson, livered said said by deed was forgery, ” you then will find for the defendants herein.’ Hnder that assignment plaintiffs error present proposi- tion: “Whether the deed referred to in above requested charge was a was an issue made forgery, pleadings case issue, there was establish tending said it was error to refuse the instruction.” requested There in the record an affidavit Alvan Jones appears in which oath of a belief that statutory makes the deed from C.O. Isom Parmer was a Kelson to When the certified forgery. in evidence that deed was offered objec- below these “We to this tions its instrument it admissibility: object because suit, in this does describe land sued other land. any Reports, Yol. which the deed is and has no calls it ambiguous That the on the That it no land conveys any be identified ground. can description, its and does manner on uncertainty account land, it or State county nor does what say mention this league it data located; land is nor does refer other be in the petition can identified. That there are no allegations Defend- which the and latent patent ambiguities explained.” can ant could not also offered to prove by surveyors they expert the field on the identify ground *8 court, not call the affidavit of to the attention of the forgery did for want the of the deed they object admissibility copy to the did they object of the execution of the Neither original. orig- the loss of the to of the certified because the admissibility copy did inal had not nor its for. Neither proved absence accounted filed make the that the had not been certified objection the the for three to the commencement among days prior papers this con- trial Under and notice thereof given opposite party. ad- was dition of hold that the certified copy properly the record we the mitted and was evidence before the execu- prima jury facie Stat.; Rev. tion C. the to Parmer. (Art. O. Nelson of deed is true that not- Co., Hancock v. Tram Lumber It 225.) stated, the defend- to make objections the failure the withstanding ants had the deed disprove to fact execution right
thus case of the prima plaintiffs. overthrow facie a finding If there was sufficient to justify before jury was deed land in controversy that a from Nelson to Parmer and the the refusal to was error forgery charge not should be reversed. The in error plaintiffs point do out to of the evidence which tends any specific prove forgery fact. to that rely deed but circumstances establish upon tending circumstances, that It is true be undoubtedly forgery might proved by to jury fact, sufficient the mind of the of that but the satisfy if circumstances are to the attention of the court on the subject called Parmer who not that and those claim under him have claimed in land for. and that Parmer had great years number openly his sales to Barnes introduced warranty plaintiffs which making n a finding claimed furnishes sufficient to ground suspicion justify that deed was not The facts executed Nelson. the record are that Parmer’s deed was made in 1838 shown by County the records of Menard in before placed was upon Brown was recorded. In 1845 Parmer sold deed from Nelson to Orleans, Louisiana, and city to one of New Barnes in the the conveyed clause gen- him deed contained the usual I do and, “And warranty thereto, following: addition eral re- heirs, and administrators myself, my bind executors moreover the said Republic if it shall of record in money turn the purchase encum- any described land appear way that the above 1910.] Co. of Texas Kimball. Houston Oil any with It can not urged of this sale.” be prejudice bered to the the con- transpired between of time length consistency veyance such nonclaim his the land constituted selling Parmer and the time validity against justify any presumption as would clause, the court that however, is, upon pressed title. of his above, a distrust deed, manifests inserted in the which was copied, and therefore is circumstance of Parmer, on the part his title was instrument concluding a jury which would justify made the that Parmer At the time probably forgery. had been put to Brown from O. C. Kelson Barnes, the deed land be- desired to sell the that fact and record, and he knew if the addi- given he would probably cause the title bad claim where- adverse did not show any tional that the record warranty return to an immediate have the right would vendee a general an eviction. He gave waiting without purchase money faith given would have good a vendor selling such as warranty did that he which tends show and, addition, above copied not able Brown. We are conveyance the prior know a distrust on the part evidence of in this clause see it tend to prove much less does was conveying, title him and was there- deed to forgery that Parmer knew his title. fore endeavoring part Barnes and Kimball nonclaim on the continued long part fact from which of forgery might also as circumstances urged are deem it unnecessary argue proposition, but we presumed, or nonaction not contend that the action for of would surely counsel the instrument could had no the execution of part who persons *9 a for- fact that Parmer had committed of the be taken as evidence are that there opinion from Kelson. We in the deed gery securing the court which would justify the jury no evidence before tin the requested. giving charge an addi- Appeals in filed in the of Civil error Court plaintiffs follows: tional of error as assignment them charge instructing in its the “The trial court erred jury un- described in petition, for the land their to find for the plaintiffs of three upon the defence should find for the they less hereby the trial court is limitation, charged which said error of years on the face of the an in law apparent and error assigned a reversal of the ask record, they respectfully for which trial.” new of the cause for and remanding the below number propo- of error is presented Under also assignment this which depend but upon assignments are denominated sitions which error of the the supposed used to out and are point the assignment of. complained court in the charge giving (cid:127) all Statutes, “In provision: contains Article Revised the trial the Court of Civil Appeals writ of error to cases of or appeal law, an error in facts, . . or on . be on statements shall either the, Does the record.” on the face of apparent or assigned that statute, of the within the terms here come assignment presented the is, the face of record? is it apparent upon “clear, or manifest word, thus: defines the “apparent,” Webster Reports, Yol. 103. 104 evident, obvious; to the eye understanding;' plain; appearing the an mean error which can ascer does not that be mind.” This or and into the record the evidence looking considering tained every an for would include assignment, considered without be at all. can be be considered considered Nothing error can the an made examination of an error which can not be apparent that con record, must therefore, the the statute be language given other struction which will make it with its requirements consistent record,” in respects. “apparent the face language, upon record, dicates that it the is to be seen face of the upon looking is, itself, show the out it must fact assignment pointed in and good sufficient to interfere to ground prevent the court done one best justice being Perhaps expression parties. readily error, is that it must a fundamental such error as being be affects seen lies at and foundation of the proceeding the base Texas, 272; Searcy Johnson, Wilson v. judgment necessarily. 298; Grant, Texas, Co., Texas, v. 97; Fuqua Brewing Harris Petty, -of This view of that assignment course supported there error. If we take in its terms plaintiffs assignment the first y is not apparent things face of that record one out examination it. an pointed propositions By in the record facts be found that existed as claimed might obvious, evident, are not manifest and not not propositions, without whether or they an the evidence to determine examination weighing of not is well taken. assignment We are opinion were assignments Civil here in can Court of Appeals presented application do considered, meaning because not come within the in the above, statute quoted assigned we as re- District Court for to the Court of Civil Appeals presentation by law. quired limitation of Defendants in the court below the statutes of pleaded three, The trial fol- five ten years. judge gave trus- instruction: “If from the lowing you believe Association, the Texas Land employes, tees of Pine agents and adverse possession league peaceable institution years three before the this suit was on (which of October, find day 1901), 19th then defendants.” was to withdraw from the of the the charge effect consideration limitation; issues of and ten years five and it jury issue confined *10 the the Texas Pine possession by Association, agents, Land its and excluded the claim that etc., tenants had so land. occupied the from the also excluded the the charges The consideration of the Land under the pleading persons issue whom Pine had claimed held the land sufficient peaceable possession Association title under the statutes limitation. time of assumed the charge title the association was sufficient of of limitation, therefore, the of three plea to sustain the plea years’ and limitation years’ ten became immaterial trial because five the the was of bar the the character which would possession recovery 1910.] Houston Oil of Texas v. Kimball. under either the in that the same difference plea, respect time If
the of the must be held. there- length possession which had held years, fore defendants the for three the possession was could not have maintained limitation they found the jury, from under either the five or ten statute and no resulted years issues. injury the failure to submit those It contended the court erred in restricting possession which Pine Land Association to its or ex- agents employes, cluded of it. tenants who have held under We the possession might find no evidence that under the Pine any directly tenant who held Land Association and the entire who claimed possession league was in for three institution of this possession years before the suit. There was neither nor evidence which upon finding pleading for the have been tracts the tenants could particular occupied by sustained, therefore, was no error in that respect there tenants holding under the Pine Land Association. directly If there was evidence which would have before jury upon vendors, remote, found that or any one more immediate of the Land held more tenants Association had one or possession by land in manner as statutes league comply limitation, then the would be erroneous would charge require a reversal judgment. shows who and E. A. J P. Copley, represented Irvin who severally at different times owned the title to league under claim, which the went about 1883 and found league squatters, three each of whom had portion of the land in improvements them, cultivation with thereon. Two of Hester, Lewis and each entered into a written contract lease, where- by each to hold agreed possession of the entire land for one league of Trans, who was then title, in consideration of the use claiming cultivation, of the land that each had under houses, etc. ap- from pears the evidence that Lewis had possession acquired por- Bush, afterwards, tion that he on from a man was named and that some by not arrangements, restored to This Bush. premises evidence, but does explained by not establish that proof take Bush undertook to as the tenant the Irvins. place Lewis fact, But if such was show the grant we the evidence fails to continued the said Lewis and possession persons claiming Bush, the title of and exer- acknowledging the Irvins possession league the entire name cising owner of the right Brown title. particular, in this the evidence Failing to sustain possession tenancy was sufficient limitation by of Lewis. Hester was the land and the occupying portion improve- small was and continued do so up ments when the lease executed thereon his the date A within of the lease. death, year sold the short time after his death his wife and son improvements Haire, A. J. assume contract tenancy S. who did not in way of Hester. did shows Haire and son oc- together land and cupy which had in cul- no part improvements been occupied evi- Hester, tivation there *11 Supkeme Repobts, Coubt Yol. for themselves either any right possession asserted they dence Ko the other portion league. or for owner of to any the the .land the in the title it Haire could not disputed doubt is true the which he received possession Irvins to the land portion by possession not establish the Hester, from this does them, of Haire, son, those who or were by thereof, which of the owners in the name
the entire
of land
league
of limitation
plea
in order to sustain the
is
the whole
element
necessary
of.
complained
did
in
charge
The court
not err
the
league.
the
in
different forms
proposition
in
plaintiffs
present
error
it
is void because
the
Kelson to Isom Parmer
that
does not
deed from
C.O.
This
the
conveyed.
describe
land
to be
sufficiently
sought
was offered
when the
of the deed
in
objection
urged
copy
and is
a number
of error based
raised also by
assignments
error,
refused by
charges asked
in
which
plaintiffs
“I,
as follows:
court.
in
deed reads
description
contained
.
aforesaid,
.
.
and
Kelson,
O. C.
of the
County
Jasper
Republic
these
sold,
and by
have granted, bargained,
conveyed,
aliened
sale
sell,
in bona fide
do
alien
confirm
presents
grant, bargain,
thousand,
twenty-
hundred
land
four
all that tract of
four
containing
Bank
Keches.
land,
on the W.
eight acres of
at
commencing
post
2,500
10,500
E.
10,000
yds.
Thence
Thence
yds.
yds.
Thence W.
K.
and 14
commencement,
arable,
said
11 labors
Thence down
labors
river to
land,
A.
it
pasture
George
league
granted
Kixon,
18th day
Commissioner of Zavalla
on the
Colony
August,
made
and for
reference is here
description
more particular
and field notes on file and of record in the Gen-
original plat
orig-
eral Land
of this
Both
introduced the
Republic.”
parties
Office
Kixon,
inal
dated
Antonio
grant,
George
August
of Lorenzo D. Zavalla
Colony
Commissioner of
Enterprise
field
C.
in
with the
correspond
Kelson.
field notes
this grant
O.
notes in the deed as
word,
except
grant
above given,
“varas,”
is used to
instead
“yards,”
the measurement
express
“at
is
an
deed,
mistake,
in the
is
evident
grant,
which
River,
the S. E. corner of
the West side of
Keches
survey
an Ash
the K. E.
18 inches
survey,
at
diameter is to the Korth
West
the distance
seventy degrees
diameter,
varas,
is to
Korth
and White Oak of ten inches in
varas.”
the distance of seven and four-tenths
forty-five degrees
will be seen
in the
deed
description
difference
is made
and of the
which reference
original grant
the grant,
makes
particularly
it more definite by describing
are
trees that
survey
by calling
bearing
Kortheast corner
orig-
A
marked so that
can be identified.
certified
off
intro-
inal
field
in the
Land
also
English
*12
107
1910.]
Co. of Texas
Kimball.
Houston Oil
of
sufficiency
original grant
the land. The
sufficient
and
describe
to
field
"has not been
plaintiffs
*13
in favor
Row,
indulged
acted.
all
must be
presumptions
should
therefore,
presume
think,
court’s
We
we
ruling.
think
We
it was filed too late.
court overruled the motion because
the
also
testimony,
a
in discovering
should
party
only
use of when
diligent
in
it
discovered.”
diligent
making
F.
of George
Defendants offered evidence to
reputation
the
prove
irrelevant
bad,
or
evidence was
Moore, but whether it was
the
good
excluded.
issue
and was properly
before
any
jury
to
have the court sub-
in
to
by special charges,
error sought,
Plaintiffs
was a pur-
the issue that
the Houston Oil
Company
mit to the
title
a
without notice
derived
for
valuable consideration
chaser
were refused. To test
charges
the Parmer
through
Houston Oil
we will assume
Com-
ruling,
correctness of
deed made
Relson to Parmer
had no actual notice of the
pany
a
for the land. Let us
valuable consideration
suppose
it paid
had not been
record
time.
upon
any
Parmer deed
placed
the deed to
was not on
of 1837 the fact
Brown
Under the law
Parmer was executed
to the latter deed
gave
when the deed to
record
Parmer,
title
the land
with the
effect
to
vesting
legal
.of
a
that Parmer
right by
in Brown to show
proving
equity
superior
that he did not
a
con-
conveyance
pay
or
valuable
prior
notice
had failed
to record his deed
entirely
for it.
If Parmer
sideration
affected the
of Brown or of
one
any
holding
not have
title
it would
notice
rested
Parmer to record his deed as
him. Ro duty
upon
Brown, nor to his vendees. Reither was it
the prior purchaser,
to
the
from him to
any
examine
purchasing
of Brown nor
duty
person
Relson had
conveyed
subsequently
to see whether
records
is
to
Brown;
required
to
look
con-
purchaser
only
deed
his
to
vendor,
his immediate
to his
or
purchase by
made prior
veyances
his
whom he derives
title. White
vendor through
remote
In that case the court said:
“Do the
McGregor,
land after the
is
deed
re-
all
who
persons
mean
words
purchase
the chain
title?
If a
subsequent
are
corded,
those
only
or
who
twice and the second grantee
the same
puts
conveys
property
grantor
one
record,
it notice
who subsequently purchases
is
to
upon
deed
his
record is not
?
think not. The
notice to
We
first grantee
from the
Ror
we
it
he is
do
think
prior purchaser.
first grantee,
the
was
anyone who should
him.
purchase
to
from
intended to be notice
who are meant
the subsequent purchasers
we
words,
think
In other
1910.]
of Texas v. Kimball.
Houston
Oil
is
to
of whose title
the title
only
origin
are
those
subsequent
.
.
all
deed.
.
object
the recorded
grantee
to
intended
however
is
same.
registry acts,
expressed,
They
some
have reason to
apprehend
alfect
notice such
persons
own,
transfer or
to
after-
incumbrance
théir
because none
prior
arising
once,
can,
wards
And
have
nature,
its own
affect them.
after
against
on
instituted
this
secured themselves
upon
search
principle,
it follows that
imputation
notice,
every
coming
into
one
them,
title
insist
the same
place, by
in
principle
derived
when
a man
himself.
rule that
once
respect
general
has
do or
shall
away
say
his
he can
granted
right, anything
another
under him”. There being
never be received to affect
his
no
Parmer
record
deed
duty resting upon
notice
vendees,
vendees, to
Brown,
Brown,
or his
or his
examine
the record
Kelson
subsequent conveyance
innocent
has no
vendees,
application
the doctrine of
purchaser
case.
of the land in the deed to Parmer were
If the description
him,
insufficient
then the
title would have
superior
title
pass
remained
title
Brown, because
deed which
no
could
passed
have
under the law of 1837. We conclude
it is not
any effect
notice,
and,
but a
title that
question
involved
before,
in the deed from
Par-
we
said
Kelson to
data
convey
title,
mer was sufficient
the land could be
because
from which
gave
identified, and
passed
title
out
superior
having
Parmer,
Kelson
those
under the
persons
who claim
*14
in the
Kelson to Brown “stand
shoes of
latter.”
facts of
of
by
this case did
the submission
call for
to the
justify
not err
purchaser,
the issue of innocent
the court did
in refusing
the plaintiffs
in error.
give
charges requested by
special
in the
objected
'The defendants
court below
introduction of
Hardin
of the
a
from the records
County
certified
of
deed from
copy
Barnes,
to Jose
land
whereby
controversy
Isom Parmer
“the law
the latter.
Because
in force
time
conveyed
(1)
that
of
deed
all
provided
acknowledg-
the execution
this
foreign
of
a
a
record,
taken before
court of
ments,
judge
when
of
should be
a
officers;
of
either
minister,
one
two
resident
a
by
certified
or
objected
of Texas.” It was
that
Bepublic
the consular
consul
the statute to
authorized
certificate
was not
agent
make
took the
judge
acknowledgment.
character of
who
(2)
official
recital
the said
this
contained
“And
objected
copy:
described
fully
miore
and was
said land is
acquired
which
grant
Kelson,
March,
13th
C.
also
me
O.
which is
by
herewith
last
objection
recorded.”
could not
duly
delivered
be
sustained,
descriptive
recital was
fur-
merely
sold,
for the
which it could be identified.
necessary
data by
nishing
had
agent
authority
the consular
make the
determine whether
us to
not,
or
if it
because
should be held
character
of official
certificate
defect
cured
authority,
no such
subsequent
had
that he
that
the consular agent
not intimate
had no such
doWe
legislation.
because it is im-
to discuss
decline
authority,
simply
case.
present
material
Supreme
Reports,
Yol.
In 1871 the
enacted
statute
ol
Legislature
subject
regis-
character,
this
tration of instruments of
whom the
designating
officers before
or
acknowledgment
the execution of
instru-
such
made,
ments
be
from which we
might
follows: “Proof or
instrument
acknowledgment
every
record
be
writing
taken before some
officers:
.
.
one of the
. When ac-
following
or
State,
without the
knowledged
proven
within the United States
or
for this
before some
territories,
notary
commissioner of deeds
public,
State,
or before some
or clerk
judge
court
record hav-
a seal.”
ing
Pas.
art.
27th
(2
Dig.,
7418.) On the
day
April,
1874, the law as' above
was in
quoted
State,,
effect
this
when the
Legislature enacted another’ statute from
we
as follows:
quote
“Every grant,
mortgage, power
or other
attorney,
instru-
ment of
for the
writing
estate,
of real or personal
conveyance
required
or
law to be
permitted by
registered,
shall have been heretofore
or
in the manner
acknowledged
proven
prescribed
without the
by law,
State and within the
States
territories,
United
and their
before any
one of the officers in such cases
authorized
now
law to take
such
or
acknowledgments
proofs,
which shall have
duly
certified
officer,
shall be held to
be duly acknowledged or
proven
full effects and
laws;
consequences
existing
in-
any such
strument,
shall
have been so
acknowledged
proven before
officers, and
either of such
which shall have been heretofore registered,
held
shall be
be
with like full
duly registered
effects and conse-
Provided, however,
laws:
quences
this Act
existing
shall not
so
as to
retroactive
operation,
construed
or to affect
to its
any right acquired prior
passage.”
the known jurisdiction
powers
From
courts
last
resort
conformity to
laws
this State we
and in
presume that
of Louisiana is a
Court of the State
court
record, and,
record,
it has a seal,
because it
is so uniformly
of record
seals
courts
as to
case
raise
presumption
A seal is .not
record,
that effect.
court of
necessary
but to use
term,
record,”
it has a
implies
the
Juan,
“court
seal.
Ingoldsby
580;
658;
Cal.,
Blethen v.
Cyc.,
Bonner,
Louisiana that which certified on the deed from Judge Morphy, was taken follows without Barnes. conclusion the last argument quoted defect, existed, if any statute cured the deed above of the acknowledgment named, that the record that deed was validated and was admissible as if statute of same it had, Scarborough. Ill 1010.] Poitevent at time to law in existence acknowledged regularly according and it was taken. The Act of 1874 affected alone rules evidence in exist- no effect to the deed than it had under the law gave greater in evi- execution, at the time of its it admissible simply making ence of the de- dence not have been. no right when might affected assignment Act. The fendants, of the acquired prior passage is overruled. and We have examined the of error carefully many assignments have discussed the material questions presented. assignments mentioned of the are overruled. find no error in the proceedings We courts, therefore, Appeals Civil judgments District Court are affirmed. ON MOTION FOR REHEARING. January
Decided 1910. In “Besides, this case said: opinion we of opinion we are as to the evidence of Parmer would have been reputation inadmissible if witness had been the trial.” It was present the. necessary decision of the then point discussed decide Parmer’s admissibility proposed general of land reputation forger titles. That sentence will be erased, unaffected leaving opinion. motion overruled.
Affirmed. Scarborough. A. B. Junius Poitevent Wife v. January
No. 2008. Decided
1.—Judgment—Description of Land. sufficiency description determining judgment, In in a ain recovered, identify calls, the land if is an evident mistake in where there the to the will, practicable, give court mistake find and correct the so as to effect Castles, 113, 114). recovery. (Pp. Mansell v. followed. i$.—Same—Correcting Mistake Construction Calls. judgment description capable field notes in held contain a of land See identification, give them though necessary, by of construction, in order to such effect it is mistake supply to correct a in one call another which was 113, 114). (Pp. omitted. Appeal. —Practice on constructing describing judgment appealed In the calls land in from for validity, purpose testing appellate its look to the evidence interpreting it in where the facts on which it was to aid found are (P. 114). the record. —Estoppel—Acceptance of Deed. conveyed, by accepting land has been sold One to whom thereafter conveyed, reciting a deed different lands grantor they is made “to same sold described in the former deed and that the second are the lánd,” complete description a more full and of said estopped purchase described in the first not in thereby from notes particular description, a more Officefor it was sufficient to identify conveyed certainty same was described with original the land if the grant 106, 107). (Pp. notes referred and field to._ —Title Land—Failure Claim—Evidence. or claim assert long failure title Where becomes an issue case, holding of one testimony by the children title of his declarations ownership thereto, among papers and of memoranda his regard relating with was (P. 107). evidence. admissible in Evidence—Diligence. Trial—Newly Discovered 12.—New newly as to discovered ground an affidavit made Where trial, delay, day unnecessary new was filed with on the seeking a preceding the Reports, Vol. truth, term, so late as to no time to showing its it adjournment of afford contest overruled, grounds in the absence properly acted,' overruled presumed it the motion because the court which filed 107, 108). (Pp. too late. 13.—Evidence—Character. lawyer, high standing grantor, character of remote Evidence of defendant, support claimed was not admissible to holding the title once presumption against genuineness adversely of that title raise a claimed. (P.108). 14.—Record Title—Innocent Purchaser. conveyances purchaser required prior of land to look A through or by his immediate vendor remote vendor whom he purchase his purchaser, immaterial to the title derived an innocent derives title. It is unrecorded, prior deed from the vendor was whether against purchaser as or tion contained whose placed purchaser descrip- If the deed of the second on record. when purchaser recorded deed to the second insufficient iden- land, holding would tify purchaser first and those him title
Notes
notes the land in the deed grant connection with objection original offered an acres, colony, James the in- same as a Rafferty colonist Nelson date the as the O. C. Neches River and same bearing did survey and issued.by the same Commissioner. The defendants
notes General Office with description both parties corresponds duced deed and in the field notes describe the corners grant, except than and detail was done either in the deed accuracy more in the and the referred The field notes grant. grant, being land, descrip- renders description particular more to is if referred valid, papers tion the deed
notes English questioned certain, that indeed, be; it are in could error, nor, they sufficiently could is, the data from which land be identified upon furnish they the ground. stated, This has a number of as before in question presented, etc., will special asked, forms and but this objections charges be a of ex- upon point, sufficient answer to all those objections every of record that was sufficient cept the as whether the to a notice. this for to We reserve put subsequent upon purchaser and discussion hereafter. examination The in error of action in ad- complain of the court plaintiffs Kimball, Alice each of mitting whom testimony Timothy Puig to speak testified heard their father lands in having owning Texas and each testified to the a certain memorandum a finding of in trunk the father after his death related the lands in to Texas and O. C. Kelson Mexican which memorandum grant, in Denison, forwarded to their in brother and introduced on the trial of this cause. The defendants in court the trial Kimball, his silence and nonaction with long title, to his regard to use the fact as the abandoned all claim to the land sought .and upon basis which to rest a aof presumption transfer right whom the persons defendants claim. Hpon this issue the evidence of Kimball’s declarations with regard to his of land in Texas was admissible ownership that he show had not abandoned his thereto. claim of the trial court was entered the 24th day on September, 1907, adjourned on 25j 1907; October on month, October, the 24th of that day the defendants filed an amended trial, which, for a as motion new in a for ground mo- granting the tion, D. set as discovered the a up newly evidence of witness A. J. filed, affidavit was in Sapp, stated, whose which he substance, that, old, he was years acquainted Isom afterwards, number of years and that Isom Parmer had land reputation forger titles and dealer titles, in fraudulent land and stated that at the date of the affidavit the witness resided some jasper County distance from the place trial, Koontz, that he was to attend requested the trial at but on from account of distance he lived did postoffice letter not in time for him to reach him attend trial. affidavit of W. Taliaferro G. was attached motion, who not the defendants did know swore testimony Sapp Isom Parmer reputation forger titles, of land nor as condition in 1839 his financial until after the trial of the case. He also stated the records Menard County show that on the deed from Kelson Isom Parmer day same was recorded there recorded about dozen other were also deeds from original grantees the said Parmer tracts large of land to in Menard County, cash consideration hundred to eight two reciting thousand dol- a new trial does application lars. The show sufficient dili- parties to entitle rehearing. affidavit gence Sapp Reports, Yol. Texas the amended motion October, 1907, 8th but day was made affidavit was of that month. The filed until the 24th day was not case for the it did not afford time plaintiffs filed so late it in any way. the truth same or to meet to contest Texas, 436. In the case cited N. & O. Ry. Scarborough, motion for us amended this court said: “Row let suppose the court adjourned, trial had been filed a short time before new law; would have adjourned by operation before would it afforded the it, because overruling the court have been justified think that meet it? counsel for We opportunity the other side no noth- There is an answer the question. affirmative should be given to show what ground the order the motion ing the overruling