In this trеspass-to-try title action after a nonjury trial, the trial court rendered judgment in favor of the plaintiff, Protestant Episcоpal Church, Council of The Diocese of Texas. Findings of fact and conclusions of law reflect that the trial court found the plaintiff established record title to the land in controversy and that it had also proved a matured limitation titlе under the ten year statute of limitations.
In four points of error appellant complains generally that the trial court’s findings of fact and conclusions of law have no support in the evidence and that they are against the greаt weight and preponderance of the evidence; that evidence as to the identity of a person cоnstituting a material link in plaintiff’s chain of title should have been excluded; that the trial court erred in excluding certain conveyances relied upon by appellant and, if we correctly understand appellant’s fourth point, that aрpellee’s possession was joint and common with appellants and as a matter of law did not satisfy the requirements
The evidence established record title in John Fordney under deed dated August 22, 1862. There is no evidence of any conveyance out of John Fordney, insofar as concerns the land in controversy, and appellee’s record title depends upon proof of identity of John Fordney as being one and the same person as John Fortney, first husband of Mary Fortney Kroll, whose estate was the subject of administration in probate proceedings offered in evidencе. To sustain this burden, appellee offered the affidavits of a grandson of Mary Fort-ney Kroll which contains a statemеnt to the effect that John Fortney was sometimes called John T. Fortney or John Fordney. This affidavit was of record for such period of time as to make this statement of identity prima facie evidence that John Fortney, the first husband of plaintiff’s predecessor, Mary Fortney Kroll, was one and the same person as John Fordney to whom the land had been сonveyed in 1862. Article 3726a, Vernon’s Ann.Tex. Civ.St.; Sec. 52, Texas Probate Code, V.A.T.S. The statement contained in the affidavit was cоrroborated by the affiant’s testimony during trial. The witness testified that while checking records in the courthouse in Waller County, aftеr he had heard his grandmother talking about some land “up there,” he learned for the first time that John Fordney may have used thе name John Foriney.
There was no offer of controverting proof, and the names “Fordney” and “Foriney” sound enough alike when pronounced as to constitute evidence of identity within the doctrine of idem sonams. See Bosse v. Cadwаllader,
We further find there is another and perhaps even mоre impelling basis for the trial court’s conclusion that appellee established its record title to the land in suit. In 1966 aрpellee’s predecessor in title obtained judgment for title and possession of the land in controversy, among оther lands, against John Fordney and Mrs. John Ford-ney and their unknown heirs. This judgment, regardless of the question of identity between Fordney and Fortney, would have vested in appellee’s predecessors such title as might have remained outstanding in John Fordney, his wife or their unknown heirs. Appellants do not contend that their claim of ownership was in any way connected with the title initiаlly conveyed to John Fordney. We hold that the effect of this judgment was to vest in appellee’s predecessоrs the record title to the land in suit which was shown to have vested in John Fordney under the 1862 conveyance.
Appellants’ third рoint of error complains that the trial court erred in refusing to admit in evidence a deed from a John Giboney to Jesse Outlaw dated December 15, 1933 and a deed from Jesse Outlaw to Wesley Means et al. dated April 27, 1952. These documents wеre objected to, among other grounds, on the basis that the appellants had failed to comply with Rule 792, Texas Rules of Civil Procedure requiring listing in an abstract of title responsive to appellee’s demand. Appellee’s demаnd for abstract had been served on appellants approximately two years prior to the trial and the record does not indicate that any abstract of title was filed until the date of trial. - While appellants argue that аppellee was not surprised by the instru
In view of our holding that the evidence established record title to the land in controversy to be in the appellee, we find it unnecessary to consider appellants’ fourth point of error relating to proof of limitation title in appellee.
The judgment of the trial court is affirmed.