HARMLESS ERROR. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*] 12. LOST INSTRUMENTS (§ 23*)-ACTIONS-EVIDENCE-SUFFICIENCY. In trespass to try title, where defendants relied on a lost deed, evidence held to sustain a finding that no such instrument was ever executed. [Ed. Note. For other cases, see Lost Instruments, Cent. Dig. §§ 51-57; Dec. Dig. § 23.*] Appeal from District Court, Liberty County; L. B. Hightower, Judge. Trespass to try title by Sinclair Taliaferro and others against C. M. Rice and others. From a judgment for plaintiffs, defendants appeal. Affirmed. deed is of no effect, and should not be called to executed in 1860, to B. Wilson or George the attention of the jury by the charge. Wilson, under both of whom appellants [Ed. Note. For other cases, see Lost Instru- claim. E. A. and R. J. Palmer are the anments, Cent. Dig. 88 58-63; Dec. Dig. § 24.*]cestors of Mrs. Taliaferro and Mrs. Bland11. APPEAL AND ERROR (§ 1064*)-REVIEW-ing, under whom they claim title as heirs. However, a charge calling such affidavit to It is contended by appellants that this deed the attention of the jury is not prejudicial er- was executed by the Palmers in 1860, and ror where the evidence of the lost deed was that it was recorded in Liberty county preslight, and the jury could not have failed to understand from the course of the trial that vious to the destruction of the records of plaintiffs claimed the deed to be forged. the county by fire in 1874. They claim that the original deed was also lost, and they sought to establish its execution by the testimony of S. F. Presswood and other circumstances of claim of title, acquiescence by Appellees denied the existappellees, etc. ence of this deed, and also attacked the instrument, if any such ever existed as a forgery. Appellants claim title under a deed from George Wilson to George Rice dated April 27, 1876. This deed described the land conveyed as follows: "One undivided onehalf of 1,000 acres of land described as follows, to wit: Beg. at a large sycamore tree in the west bank of the Trinity river opposite the corner of the first league of land below Fields running. Thence west 11,215 varas. Thence north 562 varas. Thence east 10,516 varas to the river, and thence down the river with its meanders to the beginning -containing 1,000 acres (being a part of 11 leagues conveyed to M. L. Preston by Jose REESE, J. Sinclair Taliaferro and wife Dolores Martinez by deed dated January 18, and J. M. Blanding and wife instituted this 1837)." This deed then sets out the chain of suit in trespass to try title against C. M. title as follows: "And from M. L. Preston to Rice and others, defendants, to recover land Robert Dunley, August 10, 1845. From Robdescribed as leagues Nos. 2 and 8 of the ert Dunley to George W. Turner, September Jose Dolores Martinez grant in Liberty 27, 1860. From George W. Turner to B. Wilcounty. On the trial defendants C. M. Rice, son, January 30, 1860. From B. Wilson to S. J. A. Rice, W. A. White, L. A. White, L. F. McCarty, August 24, 1866. And from McA. Isaacs, T. A. Booth, and C. N. Smith on Carty to George Wilson, March 20, 1869." their application were granted a severance. It will be noticed that this chain of title They disclaimed as to all of the land sued makes no mention of the deed from E. A. for, except a tract of 705 acres specifically and R. J. Palmer to B. or George Wilson aldescribed by metes and bounds, as to which leged to have been executed in 1860. Of the they pleaded not guilty, and the statute of deeds thus set out, the one from George Willimitations of three, five, and ten years. By son to Rice was recorded in Liberty county an amended petition plaintiffs also pleaded in 1876, and at the same time was recorded title by limitation. They also pleaded, in the deed from Martinez to Preston. A cerreply to appellants' plea of limitation, cover- tified copy of the former deed was introducture and minority on the part of Mrs. Talia-ed in evidence by appellants. The Martinez ferro and Mrs. Blanding. Upon the trial, with the assistance of a jury, there was a verdict for plaintiffs. From the judgment, a motion for new trial having been overruled, defendants prosecute this appeal. Baldwin & Baldwin, of Houston, for appellants. R. S. Neblett, of Corsicana, and Stevens & Pickett, of Liberty, for appellees. deed was not offered by them, but was introduced by appellees, over their objection, with evidence tending to show that it was forgery. No evidence was offered by either party as to the other deeds in this chain of title; appellants resting their case on the alleged deed by the Palmers to Wilson, which they undertook to establish by parol. The land in controversy, 705 acres, was a part of a tract of 1,000 acres running through the league from the west bank of the Trinity river; thence west 11,215 varas; The court submitted to the jury the sole thence north 562 varas; thence east 10,516 issue of the execution of the deed from E. varas to the river; and down the river to A. and R. J. Palmer to Wilson, claimed by the beginning. A lake ran across this tract, appellants to have been executed in 1860, leaving the 705 acres in controversy between and recorded in Liberty county prior to the the lake and the river, and 295 acres west destruction of the records by fire in 1874. of the lake. The controversy hinges upon This deed was not produced upon the trial, the issue of the execution of a deed from but appellants, after laying proper predicate E. A. and R. J. Palmer, alleged to have been for the introduction of such evidence, sought to show its execution by secondary evidence. The jury found that no such deed was ever executed by the Palmers, and there is ample evidence to sustain the finding. Without recapitulating the evidence upon this issue, we conclude as matter of fact that the alleged deed from the Palmers to Wilson claimed to be the basis of appellants' title was never in fact executed by E. A. and R. J. Palmer, and never in fact existed, but that, in so far as the evidence shows claim of title by George Rice, through whom appellants claim title, such claim rested upon a chain of title beginning with a deed alleged to have been executed by Martinez, the original grantee, to M. L. Preston, January 16, 1837, and then by a consecutive chain of deeds, as shown in the deed from George Wilson to George Rice, down to Wilson. The evidence was well-nigh conclusive that this deed from Martinez to Preston was a forgery. The Palmer title, which appellees have, began in a deed from Martinez of subsequent date to the alleged date of deed to Preston. Appellants upon the trial relied solely upon title under the alleged deed from Palmers to Wilson. The undisputed evidence established the title of plaintiff, unless title was divested out of E. A. and R. J. Palmer by the deed from them to Wilson aforesaid. [1] In laying the predicate for the intro duction of secondary evidence of the execution of the alleged deed from E. A. and R. J. Palmer to Wilson, and to show search for and loss or destruction of said deed, appel lants offered the testimony of their attorney, J. C. Baldwin, which showed extensive cor respondence with different members of the family of George Rice, and in connection therewith offered in evidence letters written by the witness, and received by him, all going to show a patient, diligent and unsuccessful search for said deed. C. M. Rice testified that he at one time had sent the package of deeds to this land to his father in Missouri by mail. His father died about the time the documents were sent, and it was claimed that the entire package, including the Palmer deed, had been lost or inadvertently destroyed. All of the evidence of Baldwin and the correspondence was addressed to the court, the purpose being to lay the predicate for the admission of secondary evidence of the execution of the Palmer deed. The trial court held, as shown by the bill of exceptions filed, "that the testimony would be admissible only for the purpose of laying the necessary predicate for showing the contents of said deed, and that this was a matter addressed to the sole discretion of the trial judge, and in the circumstances he would hold that this testimony should not be heard by the jury, but that it would be heard by the court, and that each and every part of the testimony of said witness as here related should be excluded from the jury, though admitted and heard by the the court out of the presence and hearing of the jury for the sole purpose of establishing said predicate." To this appellants excepted, and this ruling is assigned as error in appellants' first assignment of error. The court held the evidence sufficient to establish the predicate for the admission of secondary evidence. The evidence served the only legitimate purpose for which it was available. It was offered for a purpose with which the jury had nothing to do. It came in such shape, being unsworn statements of the writers of the letters, that it would not have been admissible for any other purpose. In so far as any of these statements would have tended to affect any material issue to be tried by the jury, it would not have been proper for the jury to consider them. The main contention of appellants is that, the Palmer deed having been denounced as a forgery by affidavit if it in fact ever had any existence, appellants were entitled to have go before the jury this evidence of diligent and unsuccessful search for the deed in order to meet the suspicion that would naturally arise upon its nonproduction. This contention is not sound. The letters were only admissible for the purpose stated, with which the jury had nothing to do. McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 607. The assignment is overruled. [2] By the second assignment of error appellants complain of the action of the trial to testify as to certain statements of S. F. court in allowing the witness Emmet Lum Presswood to him. George Rice, by C. M. Rice, his attorney in fact, sold and conveyed the land to Presswood in 1885, and Presswood conveyed it to C. M. Rice in 1902. statement of facts, and it is with some The bill of exceptions appears only in the difficulty that we can arrive at the exact no tions. It will be seen that the testimony | provements, if any, as improvers in good does not include any statement made by faith. The testimony referred to above was Hare. It is confined to statements made by held by the trial court not admissible for Presswood to the witness having reference any other purpose than to show good faith to his title, and to matters of fact, in the on the part of appellants in making their knowledge of the witness. Presswood testi-improvements; and, in view of the admisfied that he occupied the land over a year. sions of appellee on this point, sustained The statement made by him with regard to their objections to the testimony. In this his having no title, and that he was going there was no error. This disposes also of to quit that is, abandon his claim-and the fifth assignment of error which is overother statements along this line, were ad- ruled. missible as being admissions against his interest, and in derogation of his title at a time when he was the owner of the very title now asserted by appellants. This was sufficiently shown. Snow v. Starr, 75 Tex. 416, 12 S. W. 673. The testimony leaves no doubt that Presswood had reference to the land in controversy. [3] Some parts of this testimony were admissible for the purpose of contradicting the testimony of Presswood, and if it be contended, as is contended by appellants, that no predicate had been laid for the introduction of evidence of contradictory statements made by him in order to impeach him, it must be replied that no such objection was made to the testimony. [7] Both of the witnesses, C. M. Rice and Joe Rice, testified as to their claim of title and the claim of their father, George Rice, to the land conveyed to George Rice by Wilson, and to payment of taxes. C. M. Rice testified that they only claimed the land east of the lake, the 705 acres in controversy. Upon objection of appellees the court excluded that part of the testimony of each of them relating to statements made by Capt. Hare that the title of George Rice, as shown by deeds in his chain of title, only extended to that portion of the 1,000 acres east of the lake. Presswood in testifying to the alleged deed from the Palmers to Wilson stated that it said something about the land conveyed being taken east of the [4] Finally it may be said that the ob- lake. He testified, however, that the land jections and exceptions relate to the testi- was described in that deed in the same way mony as a whole, some of which was clear- as in the deed from Wilson to Rice and from ly free from any objection whatever, and Rice to himself, in both of which it was in such case, even if some part of the testi- described as an undivided one-half of a mony was subject to some one of the ob- specified 1,000 acres, the metes and bounds jections made, the court was not required were given, and which ran entirely through to disentangle such part from other parts the league, and made no reference to the clearly admissible, but was justified in over- lake. The effect of the excluded evidence as ruling the objection. G., H. & S. A. Ry. Co. to the statement of Hare would have simply v. Gormley, 91 Tex. 401, 43 S. W. 877, 66 Am. been in substance that this alleged lost deed St. Rep. 894. The assignment and the sev- testified to by Presswood contained the aderal propositions thereunder are overruled. ditional description of the land, conveyed [5] The court did not err in excluding the by it, that it was to be taken out of that testimony of Presswood as to statements part of the 1,000 acres lying east of the lake. made to him by Capt. Hare, over objection | Appellants could not thus establish the conof appellees that it was not shown that Hare | tents of this lost deed in any circumstances. had any authority to represent them in any way. Any statement made by Hare to Presswood or any agreement purporting to have been made by him with reference to the land obviously would not be binding on appellees, nor affect their title in any way, unless it was shown that, with reference to the subject-matter of such statements or agreement, Hare was authorized to represent appellees. The uncontradicted testimony shows that he had no such authority. The third assignment and propositions thereunder present no merit, and are overruled. The testimony offered was purely hearsay. [8] The court also excluded testimony as to an alleged agreement between George Rice and Capt. Hare that Rice was to take as his part of the land all of that east of the lake, being the 705 acres in controversy. All of this testimony was properly excluded on objection of appellees. It was not shown that Hare had any authority to represent appellees; on the contrary, it was expressly shown that he did not have. What he may have said or done was not in any way binding upon appellees. It was shown [6] There is no merit in the fourth assign- that Hare was dead. As we have said, both ment of error relating to the exclusion on of these parties testified without objection appellees' objection of the testimony of to their and their father's claim and asPresswood that J. D. Lum, speaking with sertion of ownership of title, and C. M. Rice reference to the Rice title to the land, told testified as to the fact of such assertion of him that it was a good title, that it was a title to the 705 acres east of the lake. So perfect chain of title. Appellants pleaded that in so far as such assertion of title improvements in good faith. Appellees ad- could be useful, as a circumstance to show had the full benefit of it. They did not have | to support appellees' contention that appelthe right to go further in this direction and ants' claim of this deed, was an afterthought, introduce evidence of what Hare said about born of the evidence of forgery of the deed the deed in the chain of title conveying only from Martinez to Preston. The evidence althe land east of the lake, and of an agree- so tended to explain the claim of title on the ment with Hare, an indifferent third party, part of George Rice and the present appelwhich was substantially an agreement of lants, which was relied upon as a circumpartition of the 1,000 acres, one half of stance to establish the execution of the which, if the Palmer deed was genuine, be- Palmer deed, by showing that such claim of longed to Rice and the other half to ap- title rested upon the chain of title under the pellees. The sixth and seventh assignments Martinez deed to Preston, which had no conThe admisof error with the propositions thereunder nection with the Palmer title. are overruled. What we have said also dis- sibility of this evidence for these purposes poses of the eighth assignment of error, was not affected by the fact that appellants which is overruled. did not on this trial claim under this deed [9] Appellees were allowed to introduce in and chain of title. The admission of the cerevidence, over the objection of appellants, tificate of the Secretary of State as to Gibbs' the deed from Martinez to M. L. Preston, to- appointment as commissioner was covered by gether with other evidence tending to show the agreement of the parties. In connection that the same was a forgery, and appellants with this evidence it was, we think, of some complain of this ruling of the court by their significance that the copy of Martinez's deed ninth, tenth, eleventh, and twelfth assign- to Preston purporting to have been executed ments of error. In the deed from Wilson to in 1836 was recorded in Liberty county on George Rice the grantor's chain of title is the day that the deed from Wilson to Rice set out in full, beginning with a deed from was recorded, and immediately preceding it Martinez to Preston, dated January 16, 1837. on the records. The assignments of error reEach of the deeds in this chain of title is set ferred to with the several propositions thereout with the dates of the respective deeds, under are overruled. concluding with the deed to Wilson, Rice's [10, 11] We think that it was improper for grantor. No reference is made to the deed the court in its charge to call the attention from the Palmers. In the deed from Rice to of the jury to the fact that appellees had Presswood the deed from Martinez to Pres-filed an affidavit that the Palmer deed to ton is recited as source of title. Appellees' title had its inception in deeds from Martinez of a date subsequent to that from Martinez to Preston. To show that this deed which purported to be signed by Martinez in his own hand was a forgery, affidavit that it was a forgery having been filed by appellees, evidence was introduced going to show that Martinez could not sign his name, and also to show that the Commissioner of the State of Texas in New York, before whom this deed purports to have been acknowledged, was not appointed and commissioned as such until subsequent to the date of said acknowledgment. It is true that appellants did not claim under this title, but at the time of the institution of this suit in 1904 appellees, plaintiffs in the suit, applied for an injunction to restrain appellants from cutting timber, and upon the present trial it was shown without contradiction that at the hearing of said application for injunction appellants relied solely upon this title through and under the alleged deed from Martinez to Preston, and the chain of title thereunder recited in the deed from Wilson to George Rice, and that no mention was made of any deed from Palmers to Wilson. It was further shown for appellees that they never heard of this deed until Presswood testified with reference thereto on the trial in 1906. In these circumstances, the court did not err in admitting the evidence referred to. It tended to rebut the evidence of the execution of the alleged deed from E. A. and R. J. Palmer, and Wilson was a forgery. As appellants did not produce either the original or a certified copy of this deed, but took the burden of showing its execution and contents as at common law, the affidavit of forgery was of no effect. Howell v. Hanrick, 88 Tex. 394, 29 S. W. 762, 30 S. W. 856, 31 S. W. 611. The evidence, however, could not have failed to convey to the minds of the jury that it was claimed by appellees that this alleged deed, if it ever existed, was a forgery; the real burden of appellees' claim was that no such document ever existed. We cannot think that this reference in the charge to the affidavit of forgery was such prejudicial error as to authorize a reversal, especially under the liberal rule lately enacted by the Supreme Court. The assignment is overruled. The fourteenth assignment of error does not present reversible error, and is overruled. While in many cases it has been stated that a charge on the burden of proof was unnecessary, none of them declare such charge to be reversible error, unless, indeed, it places the burden on the wrong party, which this charge does not do. The court did not err in refusing to give the charge requested by appellants referred to in the fifteenth assignment of error, upon the law as to presumption from circumstances, of the execution of a deed. The evidence disproves any acquiescence on the part of appellees in appellants' claim of title under a deed from the Palmers to Wilson, and shows in fact conclusively that there was no disputed that at the injunction hearing in such acquiescence, but, on the contrary, entire ignorance on their part of such claim until 1906. There was no break in their claim of title to the land, and they showed a rendition and payment of taxes for practically every year, after as well as before the alleged date of this Palmer deed, up to date. Besides, every assertion of title and every act of ownership on the part of the Rices can be attributed to their title as set up in the Wilson deed to George Rice under the Martinez deed to Preston. The requested charge would have been misleading. The fifteenth assignment of error is overruled, with the several propositions thereunder. 1904 appellants made no claim that there was such deed, but claimed under the chain of title in the deed from Wilson to George Rice. No reference to this deed is made in the full and careful recital by Wilson in his deed to Rice of his chain of title. The errors, if any, committed during the trial, have certainly not resulted in the rendition of an improper judgment. We find no errors authorizing a reversal, and the judgment is affirmed. Affirmed. W. D. CLEVELAND & SONS v. SMITH et al. Galveston. March 28, 1913. Rehearing Denied 1. ACKNOWLEDGMENT (§ 37*)-MARRIED WO- The court did not err in refusing the charge requested by appellants and set out in the sixteenth assignment of error. It is (Court of Civil Appeals of Texas. only by the provisions of the statute (article 2312, R. S.) that it is not necessary to prove the execution of a duly recorded deed. If instead of Presswood's testimony that the deed from Palmer to Rice which he saw had been recorded in Liberty county, appellants had produced such deed, the record thereof would not have dispensed with proof of its proper execution, except under the conditions imposed by the statute that it should have been filed among the papers of the case and notice given. The charge requested gave Presswood's testimony, that such deed show-men, having been made acquainted with the ed that it had been recorded, a greater force than would have been given to the deed itself, unless offered under the conditions imposed by the statute. The cases cited by appellants with regard to ancient instruments themselves or the record thereof produced in evidence have no application. Under Sayles' Ann. Civ. St. 1897, art. 4618, providing that no acknowledgment of a married woman shall be taken, unless it was fully explained to her by the officer taking the acknowledgment on an examination privily and apart from her husband, and that the officer shall not certify to the same, unless she acknowledged that the same was her act and deed, and that she willingly signed it and did not wish to retract, a certificate of acknowledgment, reciting that grantors, who were married wocontents of the instrument, acknowledged, on examination apart from their husbands, that and did not wish to retract, is sufficient; the they executed the same freely and voluntarily provision for a privy examination not meaning that no person other than the officer shall be present. [Ed. Note.-For other cases, see Acknowledgment, Cent. Dig. §§ 183, 199-216; Dec. Dig. § 37.*] 2. VENDOR AND PURCHASER (§ 265*)—TITLE— VENDOR'S LIEN. Where notes for the price of land acknowledged that a vendor's lien was retained to sethe grantee with knowledge of such notes takes cure their payment, one who purchased from subject to the grantor's lien. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. § 265.*] 3. ESTOPPEL (§ 26*)-DEED OF TRUST-ACQUISITION OF TITLE BY TRUSTEE. [12] The only real issue in this case was whether E A. and R. J. Palmer did in fact execute to Wilson a deed conveying this land. This issue was clearly submitted to the jury. Without this deed confessedly appellants have no title; appellees having shown title in themselves by the uncontradicted evidence, unless this deed was executed. The jury found that no such deed was ever executed by E. A. and R. J. Palmer to Wilson. To our minds the overwhelming preponderance of the evidence supports this finding. The existence of this deed rests upon the unsupported testimony of Presswood. Nobody else ever saw it or heard of it. An attorney who was familiar with the records of Liberty county before their destruction by fire in 1874, and who had examined them, testified that no such deed was recorded. C. M. Rice and Joe Rice, sons of George Rice, and appellants here, each of them at one time had in his possession the package of deeds about which Presswood testified and neither of them would swear that this Palmer deed was among them, or that he had ever seen it. The evidence was un The trustee in a deed of trust is under no and not having been required to sell the land obligation to defend the title of the grantor, he is not estopped to acquire title adverse to that acquired by the purchaser on foreclosure of the trust deed. [Ed. Note.-For other cases, Cent. Dig. §§ 61, 62; Dec. Dig. § 26.*] see Estoppel, 4. ESTOPPEL (§ 28*)-WARRANTY Deed—Heirs. A warranty in a deed only binds the grantor's heirs to the extent of the property received by them from the grantor's estate, and it being insolvent the heirs are not estopped to acquire a title adverse to that conveyed by their ancestor. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 68; Dec. Dig. § 28.*] |