Portis v. Hill

| Tex. | Jan 15, 1868

Lindsay, J.

The law and most of the facts in this case having been under review in this court on two previous occasions, as reported in 3 and 14 Texas, we are' partially relieved from an investigation of some of the points raised in the record by the examination and conclusions arrived at by our predecessors in relation to them. There were a verdict and judgment in favor of the plaintiffs in each of the trials in the court below, and each of those judgments was reversed by this, court, and the cause remanded for further proceedings. Some additional facts were introduced in the district court bearing upon the question of right of the original plaintiffs, but none contravening the right of Samuel A. Cummings, one of the defendants and an intervenor, to recover as the heir of his father, William Cummings, whatever right and title his said father died seized and possessed of. In the opinion of the court in Portis v. Hill, 14 Tex., 69" court="Tex." date_filed="1855-07-01" href="https://app.midpage.ai/document/portis-v-hill-4888224?utm_source=webapp" opinion_id="4888224">14 Texas, 69, determining the question of Samuel A. Cummings’ heirship, we fully concur. But his right of inheritance to the property in controversy is still dependent upon the complex questions involved in the determination of the rights, legal and equitable, of the plaintiffs in this suit, and it must stand or fall, to some extent at least, by the fate which awaits the adjudication of their rights in the subject-matter of this contest. We must briefly present a statement of the' nature of the controversy, the grounds of the plaintiffs’ claim, and, generally, the character of the defenses set up, in order that the exposition of our views of the law applicable to the facts may be the more intelligible.

Bnder a decree of imperial colonization law of Mexico, of date the 16th day of July, 1823, [Paschal’s Dig., Art. 519,] a concession was made to James Cummings, as a colonist, of one sitio of land in what is now Brazoria county, and one hacienda in Austin county, and carried into actual grant by the official execution of the required document on the 16th day of August, 1824. The consid.Tation for the grant of the hacienda seems to have been the undertaking of James Cummings to build a saw and grist-mill upon it. At the time of the grant the family of James Cummings was composed of his mother Rebecca, his brothers John and William, and his sisters Sarah and Rebecca.

On the 5th day of February, 1825, James Cummings conveyed by deed one undivided moiety of the hacienda to James B. B. Austin for the consideration therein expressed. After making and publishing an instrument purporting to be a will, James Cummings died in 1826. In that instrument or will, recognizing an equity of his brothers, John and William, in the hacienda, he makes them the devisees of all his right and title in that portion of his real estate.

About the time of, or shortly after, the death of James Cummings, James E. B. Austin married Eliza M. Westall, by whom he had one son, Stephen F. Austin, jr., whom he left, at his death in 1828 or 1829, as his heir at law. On the 12th day of June, 1828, John and William Cummings coveyed by deed to James E. B. Austin the two middle leagues of the hacienda, which seems to have been intended as a partition of rights in the realty, and a substitution for the deed of James Cummings to James E. B. Austin of a former date, and the passing the equity, admitted in the will, out of them into James E. B. Austin. John and William Cummings, on the 12th of June, 1828, entered into a contract of partition of their rights in the hacienda-, which was acknowledged by them before the alcalde of the jurisdiction of Austin on the same day, and which is so certified by the alcalde; but the deed of partition is only signed by John Cummings. This deed was made and acknowledged on the same day on which they made the conveyance to James E. B. Austin, and was intended, no doubt, to make an entire partition of the rights of the three parties, who alone conceived themselves, at the time, to be interested. William Cummings departed this life in the latter part of the year 1828 or in 1829, intestate, and leaving an only child, Samuel A. Cummings, one of the defendants, and an intervenor against the claim of the plaintiffs. The mother, Bebecca, died about the year 1831, and the sister, Sarah, departed this life somewhere about the same period, childless and intestate. The widow of James E. B. Austin, and the mother of Stephen F. Austin, jr., intermarried with William G. Hill in 1835 or 1836. Her son, Stephen F. Austin, jr., by her former husband, died childless and intestate in 1837, leaving his mother his sole heir at law. From the marriage of the mother with William G. Hill, the present plaintiffs sprung, who, with their father, William G. Hill, as the administrator of their mother, (she having died in 1847,) are now prosecuting this claim.

From this presentation of facts, the legal title of the plaintiffs to at least the two middle leagues of thehaei-' enda seems to be complete; and is so, unless there be some prior or intermediate conveyances, or successions, which break the chain of its derivation! For, there are only two methods of acquiring title to real estate : either by the civil or common law, to wit, by descent, or succession, and by purchase. By purchase, its acquisition may be made in various ways. The title claimed by the plaintiffs has .come to them by these methods conjointly. They insist that they take as heirs at law of their deceased mother, Eliza M. Hill, who inherited it from her deceased minor son, Stephen F. Austin, jr., who was the sble heir at law of her former husband, James E. B. Austin, who received his title by deed to one moiety of the hacienda from James Cummings, deceased, who was the original grantee from the Mexican government, and by conveyance from John and William Cummings, who were the devisees under the will of the original grantee, James Cummings. Such is the derivation of the legal title.

But it is objected, in defense, that the muniments of title introduced on the trial of the cause for the establishment of this right are defectively authenticated, and ought to have been rejected as instruments of evidence. This is certainly true, as a proposition of law, when attempted to' be used "against subsequent purchasers and creditors without notice; and in a mere action of ejectment a,t the common law, under such circumstances, several of them would be wholly inadmissible. But blended as our system is, embracing both the law and the equity of every casé under adjudication, the principles of equity, as well as of law, may be applied in determining their admissibility as proofs in the cause. They are all muniments of ancient date, and the defendants, from proof aliunde, are shown to have recognized and acted upon them from their origin, as if well understood and admitted facts; and it would seem ungracious and unconscientious, at this late date, to attempt to ignore and repudiate them as facts, to secure an unrighteous advantage. The law must hold parties to their admissions, whether by words or deeds, and they must be estopped and precluded from the assertion of claims in derogation of the rights of others, and in falsification of their own deliberate acts of admission, unless those admissions were made by mistake, or extorted by fraud or compulsion.

So far as the legal title is concerned, which passes as well by descent as by purchase, if the muniments of title of the plaintiffs have been legitimated by the admissions and conduct of the defendants as against them, (and we are thus authorized to consider the several conveyances as evidence in determining the rights of the parties,) it is most manifest that the legal title to the two middle leagues of the hacienda was in the plaintiff’s mother at the time of her death in 1847. The only effect of the.deed from John and William Cummings.to James E. B. Austin in 1828 was to corroborate the deed of James Cummings in 1825, and to pass their equity, acknowledged to exist by the will, and served to define more specifically the interest of James E. B. Austin in the land, and operated as a severance of the tenancy in common; so that each of the parties might have his own portion of the realty for his separate enjoyment or disposition. We think this testimony has been so legitimated by the uniform recognition of it by Mrs. Portis, up to or near the time of the institution of this suit. Being so recognized uniformly by the party who claims an adverse interest, it is both consonant with reason and justice to use it to fortify the legal title against the equities relied upon to defeat a recovery.

Whether we consider the case in its present form, as an action of trespass to try title, or as a trial to determine the superior equities to the right of property in the subject of the controversy, in either forum of trial, from all the attendant, circumstances, all these muniments are entitled to receive their full force and effect. Viewed in that light, they establish a legal title in the plaintiffs to the two middle leagues of the hacienda.

To pass the mere .legal title'from one holder to another, it is not necessary that the conveyance should be recorded in. an office of registration. The title of the grantor is effectually transmitted from the grantor by the act of signing and the delivering of the deed of conveyance. The policy of the government only intervenes, in requiring such instruments to be recorded, for the protection of creditors and subsequent purchasers. But such deeds are as valid, to all intents and purposes, in passing the title out of the grantor into the grantee, when unrecorded, as when recorded by the register. The legal title, then, to one moiety of the hacienda passed by the deed of James Cummings, in his lifetime, to James E. B. Austin. After the death of James Cummings, John and William Cummings, his devisees, by way of passing their equity, and of partitioning the several interests in. the realty according to the legal rights of the parties, made a deed to James E. B. Austin for a specific portion of the territory, and divided between themselves the remainder equally in the terms of the will. Their deed to Austin conveyed no new estate, but restricted, to some extent, the limits of the legal estate previously granted by James Cummings. James E. B. Austin, after he acquired this legal title, married, and begat one child, and died, leaving this child, Stephen F. Austin, jr.,.surviving him.

The descent was cast upon this son, which vested the legal title in him. He afterwards died childless and intestate, leaving his mother as his only heir at law, who intermarried with William G-. Hill, by whom she had. six children ; and since the institution of this suit the mother has died, leaving her six children her heirs at law, who, with their father as the administrator of their mother, are the plaintiffs in this controversy. Thus it is seen that the legal title has passed down to, and become invested in, these plaintiffs. We cannot ignore the facts, so abundantly established by the record, that the defendant, Mrs. Bebecca Portis, was.fully cognizant of this transmission of the legal title from the Mexican government to James Cummings; from James Cummings to James E. B. Austin; the descent from him to his son; from the son to the mother; and from the mother to her children, the plaintiffs. Her membership in the family with her three brothers, James, John, and William, when the several déeds were executed, and when the will of James was made and published; her offering the will for probate; her claiming under the will, and asserting and establishing her right to the league of land on the Bernard, devised to her in that will; and the various other acts of recognition of the validity of the conveyance, and of the will of her brother James, preclude the possibility of any ignorance on her part of the origin and nature of the rights of the parties in this contest. We are happy, therefore, to concur most cordially with the court in the opinion in 14 Texas Beports, wherein the court said, “after those repeated solemn acts of admission, it is difficult to perceive upon what rational principle the appellants can claim now to be heard to controvert,” these various facts of recognition of the right in the plaintiffs’ ancestor. “A party ought not to be heard thus to contradict and falsify his own solemn admissions and declarations made before the judicial tribunals.” This applies as well to the attitude of the plaintiffs, in reference to the title, as to the co-defendant, Samuel A. Cummings.

"We think the defendant should not thus be permitted to gainsay and to assail these evidences of the legal' title, after such repeated recognitions of them, and absolutely claiming benefits under them; as in the instance of taking the league' of land on the Bernard by the force and effect of one of the instruments of title by which the plaintiffs claim—the will of J ames Cummings. Thus we are brought to the conclusion, that the legal title is conclusive against the defendants, Portis and wife; and if this were a trial of an action of ejectment at the common law, in which the plaintiffs are compelled to recover on the strength of their own title, from the facts developed in this record they could not defeat the recovery of the plaintiffs. We grant that upon this evidence, as against an innocent purchaser, the plaintiffs could not succeed, because some of these instruments were not so acknowledged, proved up, and recorded, as would constitute constructive notice, according to the policy of the laws of registration, unless such subsequent purchasers had actual notice of these various alienations. But that excuse or apology does not exist in favor of the defendants, Mrs. Rebecca Portis and her husband, who, we are bound to conclude from the facts disclosed, had full knowledge of the transactions in regard to, and the rights of property exercised and claimed in, the land which is now in dispute. Having thus disposed of the points involved in the inquiry into the legal title, we are now brought to investigate and examine into the equities which are sought to be interposed against the plaintiffs’ right in this controversy.

It is asserted that the equitable title to one moiety of the hacienda, or to the two middle leagues thereof, was in Stephen P. Austin, sr., by virtue of the deed from James Cummings, and the subsequent deed of John and William* to James E. B. Austin; and that the holding of the legal title by James E. B. Austin was a mere naked trust for Stephen E. Austin, sr. We cannot so regard it. It is contended that the proof in the cause shows that Stephen E. Austin paid the consideration for the conveyance to James E. B. Austin. Be it so. We will not presume that Stephen F. Austin violated his trust as the empresario under Mexican authority, in order to enter into any private stipulations, in making grants of the public domain of the government, for his own benefit. Such a presumption would, be an imputation upon his honor as a man, and a charge of malversation against him as a public officer. The introduction of such proof in this cause is neither german to the investigation, nor, in our judgment, is it warranted by the rules of law. It is not properly a contest between the heirs, devisees, or legatees of Stephen F. Austin, deceased, or his privies in estate, with the parties in this suit; but it is wholly independent of them, and should have been kept distinct from any claim, or pretended claim, which such representatives or privies in estate might be able to set up in an independent cause of action.

It is not what is called in an action of ejectment at common law, to which our action of trespass to try title is likened, the showing of a superior and paramount outstanding title in another, to defeat a recovery; because, in order to give it that force and effect, the court would be bound to presume the malversation in office of one of the accredited agents of the government. For such an acquisition of right would be in fraud of the government, and fraud will neither be presumed by the courts, nor will the courts suffer it to be presumed in the trial of the facts by a jury. And here we are constrained to dissent from the reasons and conclusions of the learned and distinguished jurist who delivered the opinion in 14 Texas Beports, reversing and remanding this case for another trial. In doing so, however, we feel a real pleasure that we are not compelled to assume the grave responsibility of overruling what has been, solemnly adjudged by a tribunal so eminent for its ability and judicial talent. But, the casé being entirely reopened by the reversal, we are fully authorized again to explore the whole field of investigation, and to dispose of it according to our convictions of the law, as applicable to the facts of the case, without in the least degree detracting from the legal learning and judicial reputation of the jurist who delivered that opinion.

The subsequent claim of Stephen F. Austin, as set up in his will, has nothing whatever to do with the case; and in a contest between his legal representatives .and the legal representatives of James E. B. Austin, no court of equity jurisdiction, which is regarded as a court of conscience, would lend its aid to transfer' the legal title from the heirs of James E. B. Austin to the devisees of Stephen F. Austin. And we presume this was the ground of the decision in the case of Perry v. Hill, (however irregular' that judgment may be,) which is referred to in the record.

We can, therefore, discover no equity superior, paramount, outstanding, in any other person, which would authorize a chancellor to vacate the legal title of James E. B. Austin, and the transfer of it from those claiming under him.

As to the forced heirship of the mother of the original grantee, the equity is altogether in favor of the alienee of James Cummings. The mother, being an inmate and member of the family at the time of the alienation, must be presumed to have known that the legal title was passing or had passed out of her son to James E. B. Austin; and that John and William, her other sons, with whom she continued to live till her death, were claiming and using the land, or the residue, as their own; and her silent acquiescence, for more than three years before her death, must be assumed as a ratification of the acts, and a full and complete assent to such alienation; and in conscience it would bind her, and therefore binds all who claim by, through, or under her. In this conclusion, we are gratified to find we are sustained by the 'opinion of the court already referred to, and it is therefore needless to animadvert upon it further. She would have been concluded in her lifetime, and all her heirs or representatives are also concluded by her silent acquiescence.

The next inquiry which invites our attention is the statute of limitation, relied upon by the defendants, Portis and wife. From the view which we have already taken of the general aspect of the ease, it is obvious that the defendants cannot derive any protection from an adverse possession of three years. Hor can they be protected by any proof apparent upon the record, under the limitation of five years, as having possession, performing the conditions demanded by the statute, nor by any other statute of limitation. The evidence does not show that the defendants had had such possession, adverse and continuous, prior to the institution of this suit, so as to bring them within the rules of the statute of limitation. This defense is certainly unavailing to the defendants, Portis and wife.

As to any possession prior to 1841, if any tenant was put in possession by John Cummings, adverse to the claim of J. E. B. Austin, it could not have been done in good faith; and, if not so done, it was unavailing by the Spanish law. The proof, however, conduces strongly to show, that the tenant, Sapp, professed to hold in his own right, and not under John Cummings, as appears from Atkinson’s testimony. And that possession was finally abandoned. The possessions after 1841 were not of such a character as to bring them within the statute.

But it is argued that, as the purchasers from Portis and wife were in possession before the amended petition was filed in 1855, which for the first time set up the claim to the two specific leagues which had been severed from the tenancy in common, the statute of limitation may well apply for the protection of their claims. Hot so, in our judgment. They were all purchasers, and. came into possession of their claims after the institution of this suit in 1845. '

The original suit was a suit in equity for the establishment of the right to one moiety of the land, and for the partition of the tenancy in common; and it embraced the whole hacienda as the subject-matter of the contest. Such suit in equity is wisely and necessarily regarded by the law as notice to all the world to guard against the innu-. merable mischiefs which would infallibly and inevitably result from a disregard of this principle. All persons, then, who purchased during the pendency of that suit had notice, and were bound to take notice, till the final disposition of it. And in keeping themselves advised of its progress, if they wished to become interested in the subject-matter of its litigation, and were they vigilant, (as they were bound to be,) they would necessarily learn when the subject of the controversy became contracted or restricted; and as to the extent of those restricted limits they are bound to take notice, and have the same knowledge as of the original suit. Any other exposition of this rule in equity would let in all the mischiefs which its adoption was intended to exclude and prevent. We are therefore constrained to assume that the other defendants, the purchasers and ■ tenants, so to speak, of Portis and wife, were, Us pendens, purchasers strictly within the rule of equity, and their right and title must abide the final fate of the title of Portis and wife. Being privies in estate to Portis and wife, we confess we know of no principle or rule of law which rendered it necessary to make them parties to the suit at all; because, if a writ of possession on the final judgment against Portis and wife should issue, it would command the ministerial officer of the court to put the plaintiffs in possession, turning out not only Portis and wife, but all others in possession, connected with them in estate. Besides, the suit after amendment was conducted and carried on both upon the law of the case and the equities of the parties.

This amendment, under our system, cannot be characterized as a new cause of action. The original involved the whole territory. The amendment simply took in a part of the subject-matter, and the new defendants, having notice of the whole, necessarily had a like constructive knowledge of the parts. We, therefore, feel satisfied that the new or german defendants, as they are designated by the learned counsel for the defendants in his brief, can claim no protection under the statute of limitation.

There are various other points raised in the investigation of this case which we have not deemed it necessary to give any special consideration; and, in bur view, they are not material in determining the rights of the parties in this suit.

According to our interpretation of the law, applied to the material and important facts disclosed by the record, the right, both legal and equitable, is with the plaintiffs in the court below, and they are entitled to the possession of the two middle leagues of the hacienda.

In regard to the rights of Samuel A. Cummings, in the subject-matter of the controversy, the court, in the opinion in 14 Texas Reports, said: “The only right asserted by the defendant, Cummings, is the right of inheritance from his father; that right is fully established by the evidence; and the jury, we think, would have been warranted by the evidence in finding a verdict in his favor for that part of the land claimed by him.” So, too, we think; and we see no cause to change that opinion. Samuel A. Cummings is, consequently, entitled to the upper league and a.half of the hacienda as the heir of his father, William Cummings; and John Cummings, the owner of the lower league and a half, having died in 1889 intestate, leaving his sister, Rebecca, the wife of Portis, his nephew, Samuel A. Cummings, and the unknown heirs of his deceased brothers, Thomas and Samuel—one of whom was domiciled in Kentucky, and the other in Indiana, at the time of their deaths—as his only heirs at law; the lower league and a half is divisible in equity into four parts, of which the defendant, Rebecca Portis, is entitled to one-fourth; the defendant, Samuel A. Cummings, is entitled to one-fourth; the unknown heirs of Thomas Cummings are entitled to one-fourth; and the unknown heirs of Samuel Cummings are entitled to the remaining fourth. The inheritance of the lower league and a half, being in coparcenary, the equitable title of each inheritor or class of inheritors is to one- undivided fourth part of said league and a half, unless Portis and wife have acquired by purchase one of the shares, which will, in that event, entitle them to one-half of the lower league and a half. We suppose there was sufficient evidence before the jury to satisfy them of such purchase, as they so found by their verdict.

The finding of the jury and the judgment of the court below being in their results in conformity with our view of the rights of the parties, both at law and in equity, the judgment is therefore

Affirmed.