220 S.W. 544 | Tex. Comm'n App. | 1920
W. L. Langford brought this suit against J. C. Newsom to recover upon an alleged breach of warranty. Lang-ford owned a stock of goods at Hadley, Tex., which he traded to Newsom for a tract of land in Oklahoma; Newsom executing a general warranty deed to Langford. The land had been allotted to Thomas H. Thomas, a freedman of the Seminole Tribe of Indians, and an allottee of land under the laws of the United States. On August 20, 1910, Thomas conveyed to one Stakes, through whom New-som deraigned title. Plaintiff’s suit is predicated upon the assertion that Thomas at the time of executing the deed was a minor, and his deed passed no title. The case was tried before a jury, who were instructed to find for the plaintiff; the only question of fact left to the jury being the amount of their verdict, which they were instructed to fix at the cash market value of the stock of goods at the time of the trade, less $260. The judgment rendered upon the verdict of the jury under this instruction was reversed by the Court of Civil Appeals, Seventh Dis-
Several questions are presented by the application for writ of error which we will consider in the order of their importance.
It was contended by appellant in the Coul't of Civil Appeals that plaintiff had failed to establish a case of breach of warranty, in that there was no evidence of ouster or pressure of outstanding title, and that the mere existence of a superior title in another was not sufficient to constitute a breach of warranty. In passing upon this question, it becomes necessary to decide what law applies. After carefully reviewing the authorities, we conclude that the Court of Civil Appeals was correct in holding that, in determining the effect of covenants running with the land, the law of the place where the land is situated should govern; and therefore the rights of the parties in this regard should be determined by the laws of Oklahoma.
The státute of that state (Comp. Laws 1909) pleaded and relied upon reads:
“Sec. 1202. Interest Conveyed T>y Warranty Deed. — A warranty deed, made in substantial compliance with the provisions of this act, shall convey to the grantee, his heirs or assigns, the whole interest of the grantor in the premises described, and shall be deemd a covenant on the part of the grantor, that at the time of making the deed he is legally seized of the indefeasible estate in fee simple of the premises and has good right and full power to convey the same; that the same are clear of all incumbrances and liens, and that he warrants (to) the grantee, his heirs and assigns, the quiet and peaceable possession thereof, and will defend the title thereto against all persons who may lawfully claim the same, and the covenants and warranty -shall be obligatory and binding upon any such grantor, his heirs and personal representatives, as if written at length in such deed.”
Under this statute it is clear that the plaintiff is only required to show that the title he acquired under the deed fell short of the title which the deed purported to convey. The convenants of “seisin” and of “good right to convey” are usually regarded as synonymous, and are construed to be a guaranty against any title existing in a third person which might defeat the estate granted, from which it follows “that this covenant is broken at the time it is made where the grantor has no title, or, what is equivalent thereto, where the title is in a stranger; or where the grantor has less than the title covenanted for.” 7 Ruling Case Law, pp. 1130, 1131. The Supreme Court of Oklahoma has construed this statute as importing into all warranty deeds the covenant of “seisin” and “good right to convey.” Faller v. Davis, 30 Okl. 56, 118 Pac. 384, Ann. Cas. 1913B, 1181.
The Court of Civil Appeals, however, seem to hold that it was necessary for plaintiff to show affirmatively that the deed under which he claimed was “made in substantial compliance with the provisions of” the Oklahoma act. We have reached the con-elusion that this view is correct. The deed pleaded and proved was in form a general warranty deed, but did not in terms embrace a covenant of seisin or good right to convey. In order for an instrument to carry the covenants specified in section 1202 of the Oklahoma statute, by virtue of that section, the instrument must not only be “a warranty deed,” but it must be “made in substantial compliance with the provisions” of the act of which section 1202 is a part. It therefore devolves on one seeking to recover in Texas for breach of a covenant specified in section 1202 to plead and prove that an instrument not expressly embodying such a covenant was “made in' substantial compliance with the provisions” of the act. In the absence of such pleading and proof, no different effect should be given to the covenants of the deed than would' follow from an application of the rules declared in Land Co. v. North, 92 Tex. 72, 45 S. W. 994.
We are further clearly of opinion that the Court of Civil Appeals correctly held that, if the deed of .Thomas was executed while he was a minor, it was void and conveyed no title. This appears to be the uniform construction placed by the- courts of Oklahoma upon the United States statutes under which these lands are alienated. Tirey v. Darneal, 37 Okl. 606, 133 Pac. 614, and cases there cited.
The age of Thomas H. Thomas at the time he executed the deed to Stokes presents the only question of fact in establishing breach of warranty. Plaintiff sought to prove this by introducing a certified copy of the Seminole Freedmen roll, which reads as follows:
The objections, both to the oral testimony and to the certificate, were sustained by the Court of Civil Appeals.
The United States statute bearing upon this question reads as follows:
“That the rolls of citizenship and of freedmen of the Five' Civilized Tribes approved by the Secretary of the Interior shall be conclusive evidence as to the quantum of Indian blood of 'any enrolled citizen or freedman of said tribes and of no other persons to determine questions •arising under this act and the enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman.” U. S. Statutes at Large, vol. 35, p. 312.
This statute has been frequently before the courts of Oklahoma, and it has been uniformly held that the enrollment records of the Commissioner to the Five Civilized Tribes constitute the only admissible testimony for the establishment of the age of al-lottees of lands of these tribes. Yarbrough v. Spalding, 31 Okl. 806, 123 Pac. 843; Lawless v. Raddis, 36 Okl. 616, 129 Pac. 711. To the same effect is Bell v. Cook (C. C.) 192 Fed. 597. These decisions have been approved in a recent opinion of the Supreme Court of the United States. United States v. Ferguson, 247 U. S. 175, 38 Sup. Ct. 434, 62 L. Ed. 1052. Under these decisions, the testimony of Thomas as to his age was inadmissible.
We are clearly of opinion that the Court of Civil Appeals was correct in holding the certified copy of the enrollment record inadmissible on account of the fact that it had no seal. The able discussion of this question by the Court of Civil Appeals and the statutes and authorities cited are referred to.
We have some difficulty in determining whether the certificate above quoted identifies the record certified to as that which the statute quoted makes conclusive evidence of the age of freedmen. It will be observed that the rolls of citizenship approved by the Secretary of the Interior are made conclusive as to the quantum of Indian blood, while “the enrollment records of the Commissioner to the Five Civilized Tribes” are made conclusive as to age.
In the case of Scott v. Brakel, 43 Okl. 655, 143 Pac. 510, Chief Justice ICane of the Oklahoma Supreme Court gives the history of this legislation and the manner in which the various rolls were compiled by the Dawes Commission. It appears from this opinion:
That the enrollment records embraced" the evidence and conclusions of the commissioners; whereas the approved roll “was nothing more than compilations from the enrollment records in the form of typewritten lists of the members of the tribes found entitled to enrollment with numbers opposite their names for the purpose of identification, and followed by typewritten numbers showing age, sex, degree of blood, and card number compiled from the enrollment records. These rolls as prepared and submitted to and approved by the1 Secretary of the Interior contained no computation of the age of any member of the tribes at any given date, and the calculation of ages, as shown on the published rolls, is not uniform throughout the publication. No date is given for the calculation of the ages of Cherokee freedmen, and in the Creek Nation the public is warned against ■ aeceptihg rolls as an evidence of age, as both the final roll of Creeks by blood and of Creek freedmen bear the notation: ‘Ages shown on this roll are the ages shown on date of enrollment. To calculate present age of allottees, it will be necessary to secure a certified copy of census card showing date of enrollment.’ ”
The language of the statute quoted is plain, and the reason for making the enrollment records, and not the approved roll, conclusive evidence of age, is obvious in the light of the manner in which these rolls were made up. The decisions above cited make it clear that only the enrollment records are competent evidence upon the question of age.
We are not prepared to say, however, that the objection to the certified copy as not being a copy of the enrollment records shobld be sustained. The certificate is in the exact language of the certificates in the cases of Yarbrough v. Spalding, 31 Okl. 806, 123 Pac. 843, and Campbell v. McSpadden, 34 Okl. 377, 127 Pac. 854. In both those eases the certified copy was admitted as being a copy of the enrollment records, although the certificates use the expression “Approved Roll of Cherokee Freedmen” in one case, and “Approved Roll of Creek Citizens by Blood” in the other. In the latter case specific objection was made to the copy offered in evidence, as being a copy of the approved roll, and not a copy of the enrollment records.' In overruling this objection, the court say:
“Now, the approved rolls of Cherokee freedmen, copy of which is in the state library, and which we have examined, do not show the date to which the ages of Cherokee freedmen were calculated. But the certificate above does show the date to which their ages were calculated, and shows that the allottee Ellis Williams was enrolled 15 years of age, as of September 1, 1903; hence we must conclude that the above instrument is not a copy of the ‘rolls,’ but a copy of*547 the ‘enrollment record,’ referred to in the act of Congress, and made conclusive_ as to the ages of those enrolled.”
The certificate in this case gives the same data as that given in the certificate in Campbell v. McSpadden, except that in the latter case the day of enrollment is given, whereas in the present case the month only is given. As we hold that the certificate was not admissible for want of a seal, and a new certificate must be obtained,' and as the question here presented is solely one of identity of the proper record, all doubt in this regard may readily be removed upon another trial.
The only other questions presented relate to the admissibility of testimony. Under the case of Browder v. School District, 107 Tex. 535, 180 S. W. 1077, the decision of the Coqrt.of Civil Appeals upon these questions is final, and not reviewable by the Supreme Court.
We conclude that the judgment of the Court of Civil Appeals reversing the judgment of the trial court should be affirmed, and the cause remanded for a new trial in accordance with the views herein expressed.
The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the questions discussed.