210 S.W. 687 | Tex. Comm'n App. | 1919
This suit involves the title to 666 acres of land, a part of the W.. H. Smith league in Jefferson county. All parties to this suit claim - through P. O. Broussard as a common source of title. P,
P. O. Broussard died intestate, and his lands passed according to law of descent in Texas. It appears that Derneuville Brous-sard, in addition to the one-eighth inherited by him, acquired by deed from his sister, Delzende Broussard her one-eighth, and from his sister Ezilda Broussard her one-eighth, and also acquired by deed one thirty-second undivided interest from one of the fQur heirs of his deceased sister, Azema Broussard.
Derneuville Broussard prior to his death joined by all of his children sold all of their interest in the land in controversy to R. S. Jackson.
Derneuville Broussard married a widow having two children by a former husband. These children are Ellen Craigen and Odelia Oarouthers, whose husband is Edgar Car-outhers. These stepchildren did not join in the conveyance to Jackson.
This suit was originally brought by Ellen Craigen and Odelia Oarouthers, joined by her husband, against R. S. Jackson, to recover the land in controversy, they claiiñing that the land was community property of their mother and Derneuville Broussard, and that they were entitled to their proportionate part of their mother’s community interest. The petition, however, does not disclose what interest they claim, the suit being for the entire tract.- -
Afterwards the heirs of Azema Broussard, deceased, the heirs of Emile Broussard, deceased, and the heirs of Theophile Brous-sard, deceased, intervened, claiming title to 'the respective portions of said land inherited by their several ancestors from P. O. Brous-sard.
Ellen Craigen and Odelia Oarouthers, joined by her husband, Edgar Oarouthers, amended their petition, and made all of "the inter-veners parties defendant, and the several in-terveners by amendment sought a judgment against the plaintiffs and the defendant Jackson for the title and possession of the land.
The foregoing is sufficient as to the general nature o-f the suit. The case was tried by the court, a jury being waived, and the court rendered judgment in favor of the plaintiffs Ellen Craigen and Odelia Oarouthers against all the other parties to the suit for one-eighth part of the two-eighths interest in said land inherited by Theophile Broussard and Emile Broussard, and for a small interest in that portion 'of said land inherited by Victorie B. Hebert. (As to this interest of Yictorie Hebert there' is no complaint that the judgment was improper.) The court further rendered judgment that the intervener Alodie Broussard De Blanc take nothing; that the heirs of Azema Broussard recover one-third of one-eighth interest in said land; that the heirs at law of Emile Broussard and Theophile Broussard take nothing, and that the heirs at law of Emerente Broussard recover an undivided one-eighth interest in the land, and as to the remainder of said land judgment was rendered in favor of the defendant Jackson.
Jackson attempted to appeal from the judgment of the trial court, but his appeal was dismissed, and no complaint is made of this action of the Court of Civil Appeals.
The Court of Civil Appeals (161 S. W. 60) affirmed the judgment of the trial court except as to the judgment rendered against the heirs of Azema Broussard, the court holding that the interest of Celema Broussard, one of said heirs, did not pass by a certain deed under which it was claimed her interest was conveyed, and that the heirs of Azema Brous-sard were entitled to recover her interest; the,, said Celema Broussard being dead.
The court granted the application of R. S. Jackson, of Ellen Craigen, and Odelia Car-outhers and of the heirs of Emile Broussard and Theophile Broussard for a writ of error, and the whole case is now before this court. All other necessary facts will be stated in the opinion.
Opinion.
The facts in this case are very complicated, but the questions involved are:
First. Is the evidence sufficient to authorize the finding by the trial court that Emile Broussard and Theophile Broussard conveyed their interest in the land to Der-neuville Broussard?
Second. Did the deed signed by the heirs of Emerente Broussard, but in which their names did not appear as grantors, pass their interest in the land?
Third. Did the purported deed of Celema Broussard pass her interest in the land?
Fourth. Was the land purchased by Der-neuville Broussard from his sisters Delzende Broussard and Ezilda Broussard and from the heirs of his sister Azema the community propei ty of Derneuville Broiigsard and nis wife, or was it his separate property?
P. O. Broussard died about the year 1877 in the state of Louisiana, where he then resided. He owned at the time of his death a considerable estate in land and cattle and other property in that state situated in or about Johnson’s bayou in the southwest corner of that state. He died intestate. He left surviving him seven children whose names we have already stated and the descendants of a daughter, as heretofore stated. At the time of his death he owned two tracts of land, a part of the Smith League in Jefferson county containing approximately 1,000 acres. One of these tracts is the land in controversy.
Theophile Broussard died in December, 1881, leaving as heirs some of the interveners in this ease, and Emile Broussard died in 1904, leaving heirs who are also interveners.
At the time of P. 0. Broussard’s death he was the owner of some cattle running on the .range in Jefferson county, Tex. Derneuville Broussard at the time of his father’s death lived in Texas, and resided on the 666-acre tract of land in controversy, and had resided on said land for several years previous to his father’s' death. He continued to reside on the land until the year 1907, and had on the land a- small house and about 20 acres fenced and under cultivation. The remainder of the land was open prairie and was not inclosed. After the death of P. O. Broussard his son, Emile Broussard, principally looked after the business of the estate in Jefferson county, Tex. Under his direction J. Burrell, an old citizen of the county, for several years after the death of P. O. Broussard and up to the year 1881, rendered the land for taxation in the name of P. O. Broussard, and paid the' 'taxes on the land out of the sale of stock belonging to the estate of P. O. Broussard, rendering an account of the balance of said sales to Emile Broussard. About the year 1891 Emile Broussard and Theophile Brous-sard were together in Jefferson county, Tex., and in what is known as the Hamshire settlement, where Derneuville Broussard, J. Bur-rell, and L. Hamshire lived. Some time about this period Theophile Broussard tried to sell his interest in his father’s estafe in Jefferson county to L. Hamshire, who refused to buy. Some time about the year 1881 there was some kind of adjustment or settlement between the brothers Theophile Broussard, Emile Broussard, and Derneuville • ¡Broussard as to some part of the estate of their father in Texas. The evidence leaves it in doubt as to exactly what matters were settled, but is, sufficient to show that at that time somé'disposition or division was made of the stock and personal property. There is no evidence that any division was made of the land, or that any settlement was made with reference to the land. The evidence does show that the estate of P. O. Broussard in Louisiana was administered on, and that it was settled and divided among the heirs, and that Derneuville Broussard got his portion of his father’s estate in Louisiana. The administration in Louisiana seems, so far as the evidence shows, to have taken no notice of the property situated in Texas.
That after about 1881 Emile Broussard, ceased to look after the estate in Texas, and that about the year 1883 Derneuville Brous-sard instructed J. Burrell to render the land for taxes in his name, and that the land was so rendered for taxes in his name and the taxes paid by him, so far as they were paid at all, from the year 1883 to the year 1907; after the lands were rendered in the name of Derneuville Broussard, J. Burrell, under the instruction of Derneuville Broussard, continued to pay taxes on the lands out of the proceeds from the sale of the cattle on the range, which cattle were then claimed by D. Broussard, and that he accounted to D. Broussard for the balance of the proceeds of such cattle, and this course of dealing continued for many ye.ars. There was evidence that some time about the year 1881 there was a rumor in the neighborhood that Der-neuville Broussard had brought the interest of Theophile Broussard, and that he had also in some manner acquired the' interest of Emile Broussard. The evidence shows that from about the year 1881 Emile Broussard did no act showing a claim of title or ownership to the land in Texas prior to his death, which occurred in the year 1903, and that his heirs had made no such claim until this suit was filed. Theophile Broussard died December 15, 1881, and the evidence fails to show that he had asserted title to the land at any time, except by offering to sell his interest, as above stated, and that his heirs after his death took no steps with reference to this land, nor made any active claim thereto until this suit was filed.
Derneuville Broussard resided on the land in controversy with his wife until about the year 1893, his wife dying in that year. After her death he undertook to qualify as survivor in community of the estate of himself and his deceased wife, and caused to be prepared and signed an inventory, purporting to show the community property of himself and wife. This inventory, so far as material, was as follows:
“Inventory and appraisement of property, real and personal, belonging to D. Broussard and his deceased wife, Mary Broussard. Beal estate, 125 acres of the W. H. Smith league valued at $125.00.”
The evidence showed that Derneuville Broussard was married some time" prior to 1880, the exact date not shown. About the year 1893 or 1894, and evidently after the death of his wife, Derneuville Broussard employed an attorney to make a search of the records of the county to ascertain if he could find of record any instrument from any of his brothers and sisters conveying a transfer of their shares in his father’s estate to him. He stated that he had purchased some such interest. The search was made, and no such instruments were found registered in the county. The lower court finds that it was a part of the family history that Derneuville Broussard had acquired some of the interest of his brothers or sisters in the early 80’s but we find no satisfactory evidence of such fact in the record, there being nothing more than testimony that there were rumors to that effect. No statement by Emile Brous-sard or Theophile Broussard or' any person claiming under them to that effect was shown to have been made, and there was no evidence that they or their heirs ever heard of any such history. On the contrary, some of the interveners testified that no such sale had occurred so far as they ever heard or knew.
The Court of Civil Appeals found that after the death of Theophile Broussard in 1881 and of Emile Broussard in 1903 none of their heirs ever asserted any claim or disputed the claim set up by Derneuville Broussard. This is true with the qualification that there was no evidence that either Theophile Broussard or Emile Broussard or their heirs ever heard or knew that any such claim had been set up. One of the daughters of Derneuville Broussard testified that her father had bought the interest of some of his brothers and sisters prior to her mother’s death, but there was no testimony that he had bought the interest of either Emile or Theophile Broussard.
The evidence we think tends to show that the Broussard family in Louisiana were at least in reasonably good circumstances, and shows that the land in controversy in the year 1881 was worth only about 50 cents an acre. It further shows that Derneuville Broussard had little or no property prior to his marriage, and that his wife had a few cattle, and that he during his father’s lifetime had resided with his family upon the land in controversy, and that after his father’s death he continued to reside thereon. No question arose as to the ownership of this land until after the death of Derneuville Broussard and his two brothers, Emile and Theophile.
The evidence further shows that in the year 1894 Derneuville Broussard went to one Russell, an attorney at Beaumont, and stated that the land (referring to the land in controversy) belonged to some of his kindred, but that he had seen the parties in Louisiana and had paid them for their interest. He then mentioned the parties whose interest he had acquired. He further stated that he had bought them out and paid them before that, and that he wanted to take a deed to Louisiana and get them to sign and acknowledge it. He gave the attorney the names of the parties to put in the deed, and stated that he had purchased the interest of the parties named by him. He directed the attorney to recite in the deed the consideration as $50 paid to each of the grantors severally. This deed, which was obtained and appears in the record, was signed by his sisters Ezilda and Delzende Broussard and by various heirs of his deceased sisters, but the deed as prepared from, the names furnished by him did not include either his brother Emile, he being then living, nor did it include the names of any of the heirs of his brother Theophile Broussard. Derneuville Broussard at the time said deed was prepared, although he then knew that there was no deed of record from his brothers, did not claim to the attorney that he had acquired the interest of his brothers, nor did he at that time undertake to obtain a deed from his brother Emile and the heirs of Theophile, although he knew that no such conveyance was of record,
. The evidence further shows that one of the sisters of Derneuville Broussard about the year 1900 sold her interest in the land to one Gallier, and that h.e took possession of about 125 acres of the land and fenced it, and that his right to the land was recognized by Der-neuville Broussard. In the year 1907 Der-neuville Broussard, joined by all of his children, made a conveyance to the defendant R. S. Jackson of their interest in the land. This deed recited a consideration of $1,332 cash, and in the granting clause purported to convey “all the interset of the grantors in these certain lands situated in Jefferson county, Texas, described in a deed from Ezilda Broussard and others to said Derneu-ville Broussard recorded in vol. 11, page 510, of the deed records of Jefferson county, Texas, being part of the league of land granted to William H. Smith, and being 666 acres, more or less.” The evidence tends to show that at the time of this sale the land was worth much more than the amount paid. The defendant R. S. Jackson, who purchased the land from Derneuville Broussard, taking the deed above referred to in the year 1907, did not testify in person on the trial. It appears that his ex parte depositions had been taken and a portion of these depositions were introduced by the plaintiff. Iff that portion
From the facts above recited the trial court and the Court of Civil Appeals found that Emile and Theophile Broussard had about the year 1881 conveyed their interest in the land to Derneuville.
These principles have been announced in numerous cases in Texas where title was asserted by limitation by one tenant in common as against the other tenants in common, and it is equally applicable where the presumption of a deed is sought to be proved by such possession and use. The Supreme Court of West Virginia, in a case involving this question, said:
“There can be no adverse claim or title, unless there is actual ouster and notice or knowledge of hostile claim brought home to the other party. Mere silent possession by one, no matter how long continued, does not destroy the 'right of another, unless there be ouster, or adverse claim with notice to the other of adverse claim. Justice v. Lawson, 46 W. Va. 163, 33 S. E. 102; Cochran v. Cochran, 55 W. Va. 178, 46 S. E. 924; Cooley v. Porter, 22 W. Va. 121; Boggess v. Meredith, 16 W. Va. 1.
“ ‘Where the possession of one is entirely consistent with title in another it cannot give rise to a presumption of a conveyance from the latter.’ 22 Am. & Eng. Encyc. of Law (2d Ed.) 1290.
“Ricard v. Williams, 7 Wheat. 59, 5 L. Ed. 598, says that this presumption can never arise ‘where all the circumstances are perfectly consistent with the nonexistence of a grant.’ As the possession of one joint tenant is consistent with that of another — is in fact his possession —the law raises no presumption that the other has conveyed his title to the one in possession.”
Logan v. Ward, 58 W. Va. 375, 52 S. E. 401 (5 L. R. A. [N. S.] 156).
When Derneuville Broussard and his children sold to Jackson and made a deed conveying their interest in the land they did not, so far as the, record shows, assert title or purport to convey the entire tract or any specific interest therein, but only their interest in it, whatever that interest might be. The evidence tends to show that this land was then worth about $5 per acre, and Jackson only paid $1,332. The price paid tends to show that Jackson did not purchase, and that Derneuville Broussard and his children did not intend to convey, the entire tract of land, but an interest in same much less than the whole.
The fact that Jackson did not testify as to the transaction by which he acquired the land and the negotiations preceding the purchase and as to what interest was intend >
As the execution of a deed or deeds is sought to be established by circumstantial evidence, all the circumstances must be considered, and they must at least render it probable that such deeds were executed.
If any such deeds were executed or if Derneuville Broussard had in any manner acquired the title of his brothers, he knew it, and we would naturally expect that when he discovered that he had no record title and undertook to cure the defects that he would have procured, or attempted to procure, from his brother Emile Broussard, who was living, a confirmation deed, and also some evidence of title from the heirs of his brother The-ophile. ’ ■ ■
Again, we think that when the land was purchased by Jackson that the question of title and the extent of Derneuville Brous-sard’s ownership would naturally arise, and we would reasonably expect that at that time, if in fact conveyances had been made, some effort would be made to cure the defect in title apparent of record by procuring conveyances from the heirs of Emile and TheopMle Broussard.
The inventory made by Derneuville Brous-sard after the death of his wife amounted to a statement by him that the community estate owned 125 acres in the Smith league. We are unable to see how it can be construed as the assertion that the community owned 250 acres, but, if so construed, it is clearly accounted for by reason of the fact testified to by various witnesses that he claimed to have acquired the interest inherited by some of his sisters. We can see no reason why this inventory should be explained on the theory that he had acquired the interest of his brothers which he never claimed to have done, rather than upon the theory that he had acquired the interest of some of his sisters which he had claimed to have done.
We think that, considering the small value of the land and the pecuniary condition of Derneuville Broussard, as disclosed by the record, and the apparent comfortable circumstances of his relatives, that his possession and limited use of the land can more reasonably be attributed to the indulgence of his kindred than to the presumption of a deed.
There is not, we believe, on^single circumstance disclosed by the record 'that cannot be reasonably explained otherwise than by the presumption of a deed, while many circumstances appear to £e entirely inconsistent with the theory that Emile and Theophile Broussard had conveyed their interest in this land to Derneuville Broussard.
We therefore are constrained to conclude that there is no evidence in this record authorizing a finding that Derneuville Brous-sard ever acquired the interest of his brothers Emile and Theophile Broussard.
Article YY49 of the Revised Statutes provides that the plaintiff may offer in evidence deeds for the purpose of showing common source only, and that such deeds shall.not be evidence of title in theo defendant unless offered in evidence by him. So in this case the defendant is without any evidence of title whatever. This is a statutory rule, and we think founded on good reason. We do not feel authorized-to disregard it. The plaintiffs having shown that they have an undivided interest in the land, however small, in the state of this record were entitled to recover as against the defendant Jackson all of the land.
This condition of the record requires a reversal of the judgment as between the plaintiff and the defendant Jackson. But for the fact that this situation is perhaps the result of an oversight either in the introduction of the evidence or preparation of the record, we would be disposed to here render judgment for the plaintiff, but as it appears from the entire record that Jackson owns an interest in the land, we think that in the interest of justice the cause should be remanded for a new trial as between the plaintiffs and the defendant Jackson.
We do not tMnk that knowledge on the part of Jackson that Derneuville Broussard had been married, and that plaintiffs were children of his wife, would be sufficient, but that in some way notice must be brought home to Jackson that the lands were purchased and paid for either in whole or in part with community funds. Pouncey v. May, 76 Tex. 565.
We recommend that the judgment of the Court ‘of Civil Appeals awarding Alodie Broussard Le Blanc a judgment against the plaintiffs and against the defendants and all other parties to the suit for an undivided one forty-eighth interest in the land be affirmed; that the judgment of the Court of Civil Appeals awarding Adam Thibedeaux and Aurelia Thibedeaux a judgment against the plaintiffs and the defendants and all the other parties to the suit for one forty-eighth undivided interest in the land in controversy be affirmed; that the . judgment of the trial court and the Court of Civil Appeals denying the heirs of Emile and Theophile Broussard any recovery be reversed, and judgment here rendered in favor of said heirs and against all the other- parties to the suit for an undivided one-fourth interest in the land in controversy; that the judgment of the trial court in favor of the heirs of Emerente Broussard be affirmed; that the judgment rendered by the trial court and by the Court of Civil Appeals in favor of the plaintiffs be reversed; and that the case be remanded for a new trial between the plaintiffs Ellen Craigen and Odelia- Car-outhers, joined by her husband, and the defendant Jackson; that all the interveners for whom judgment is hereinbefore rendered recover against the plaintiffs and the defendant Jackson all cost, and that as between the plaintiffs • and the ■ defendant Jackson - the plaintiffs recover all costs of the Court of Civil Appeals and the Supreme Court.
The judgment recommended by the Commission is adopted and will be entered as the judgment of the Supreme Court except in so far as it recommends that judgment be here rendered in favor of the heirs of Emile -and Theophile Broussard against all parties to the suit for an undivided one-fourth interest in the land. The judgment of the trial court and of the Court of Civil Appeals denying these heirs recovery for their interest will be reversed, but instead of judgment being rendered in their favor for such interest, the cause, as to their right of recovery, will be remanded to the District Court. We approve the holding of the Commission on the questions discussed.
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