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ty, and the court's finding is positively ineffi- , to jurisdiction of this mandamus under the cient when he says they should not be con- Constitution, "as necessary to the enforcesidered in determining the matter of appeal.ment of the jurisdiction of that court" in If the court meant they were exempt as order to determine the relator's right to ap“milch cows,” there was absolutely no proof peal to that jurisdiction, and we do not of the exemption. This court announced think the objection that certiorari is an adthe rule in a majority opinion (Chief Justice equate remedy is tenable; if relator is unGraham dissenting) in the case of Patterson able to give bond on appeal, he would be v. English, 142 S. W. 18, through Associate unable to do it in a proceeding in certiorari; Justice Hall, that where the testimony show- and, the matters discussed being apparent ed that three heifers in a debtor's possession upon the record going to the very right of intended to be used by him as milch cows, the case and the foundation of the cause, it although never having been milked, were is ordered reversed and remanded. exempt—which we think is clearly a correct holding. But this record is devoid of any

On Motion for Rehearing. such testimony, and in the absence of any [5] We note the following language in the testimony indicating that they could not be argument upon motion for rebearing: “The used as available property for the purpose law says that trials of cases from the justice of paying the costs, or at least a part there court to the county court shall be 'de novo.' of, the relator has fallen far short of the Yet it seems that in this case the higher prescription of the law, when, as the Su- court has seen fit to send this cause, not preme Court says, “upon contest the facts back to the court from where it is appealed, must show the total inability” in order to which was a court of record, but it has gone obtain the right of appeal by affidavit. The further and sent it to the court which is not order of the justice of the peace, setting one of record.

In fact, there is no aside the affidavit, must stand unless the way that we can see thus far to get this case evidence is suggestive that he deprived re- back before the honorable justice of the lator of the right of appeal. When notified peace." This court reversed and remanded of the pending contest, relator failed to ap- this cause to the county court, and the effect pear and disregarded the hearing. Of course, of its judgment would, of course, be extended the right of appeal is a valuable right, and, no further. The county court has the jurishowever much this record might appeal to diction to retry this cause upon such approus otherwise, we are not constrained to disre priate pleadings and testimony as it deems gard the opinions of the higher courts, and will meet the issues involved, as it is a diwhat we consider the inevitable logic of the rect proceeding for mandamus in that court record, and give the right where the measure and to that extent is an independent suit to of the law in unfulfilled.

meet the purposes of that proceeding. It is to be observed that relator, in his [6] The appellee is insistent that fundaapplication for mandamus, in reality does mental error apparent upon the face of the not attach the action of the justice of the record does not exist in this cause. In this peace in setting aside the affidavit. We cause the relator executed a pauper's affthink it is clearly incumbent upon him to davit in another proceeding in the justice plead and prove that the justice of the peace court, which was set aside by the justice of had not the right to set aside the affidavit the peace upon a contest filed by the opposite in order to show the county court that he litigant in that cause, upon proper notice was entitled to right of appeal; the opinions given to the relator, who was the defendant of the Supreme Court are to our minds con- in the other case. The relator, in his peticlusively persuasive of the proposition, and tion for mandamus, in order to obtain the in the event of another hearing, and another right of appeal, alleged the pauper's affidavit appeal, we would suggest that the record but did not assail the subsequent action of be more specific. For example, the notation the justice of the peace in reversing his foron the docket of the justice court in regard mer action, in setting aside the pauper's affito the filing of the affidavit, introduced by davit. This fact was prominent in this recrelator, says: “Affidavit in lieu of cost bond ord. This latter order of the justice of the filed this 7th day of May, A. D. 1912, and peace, standing unassailed by relator in this proof made of inability to make cost bond mandamus proceeding in the county court,

P. L. Hart, J. P., Prect. we decided then, and reiterate, that it went No. 7." If such is the affidavit and the rec- to the very right of the cause and to the ord speaks the truth, the form of the aff- foundation of this proceeding. It is true we davit really controlling under the decisions, inspected the record and discussed the inoral proof being unnecessary until the con efficiency of evidence to support a fundatest arises, relator has not complied with the mental finding necessary to maintain the law. It is true the justice of the peace says, judgment of the court; and, the lack of "an affidavit in forma pauperis” was present- pleading being apparent, it was better to ed to him; but, if his docket bespeaks a discuss the evidence than leave appellee in character of affidavit in forma pauperis, it the dark; and without a pleading assailing is not one. The affidavit is not in the record. the order of the justice of the peace, with record of an absolute lack of testimony to court's refusal to find such a sale would not be sustain the judgment of the court, we held disturbed on appeal. that this order of the justice of the peace, Error, Cent. Dig. $8 3955–3960, 3962-3969;

or secure same.

(Ed. Note.-For other cases, see Appeal and not having been shown to have been improp. Dec. big. g 1008.*] er, by either pleading or evidence, and

7. JUDGMENT (8 743*) CONCLUSIVENESS fundamentally controlling the right of ap- PERSONS BOUND. peal, until stricken down, would necessarily A judgment in a suit to remove a cloud stand.

against the executor and heirs of B. did not The motion for rehearing is overruled.

affect parties who had acquired B.'s title prior to the institution of such suit.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. $$ 1252, 1253, 1270-1277, 1284; Dec.

Dig. § 743.*)
WAGNER v. GEISELMAN.

8. NEW TRIAL ($ 102*)-NEWLY DISCOVERED

EVIDENCE-DILIGENCE. (Court of Civil Appeals of Texas. Galveston. Where an action of trespass to try title April 4, 1913. Rehearing Denied

was commenced in April, 1905, and tried in April 24, 1913.)

January, 1912, could not be said that the tri1. APPEAL AND ERROR ($ 219*)—ADOPTION OF al court abused its discretion in denying a new

trial for newly discovered evidence, consisting TRIAL COURT'S FINDINGS. Where the trial court's findings of fact of public records of the same court,' for lack of

diligence. were not objected to, they would be adopted by the Court of Civil Appeals, although such find

(Ed. Note.-For other cases, see New Trial, ings were not requested.

Cent. Dig. $8 207, 210-214; Dec. Dig. § 102.*1 [Ed. Note.-For other cases, see Appeal and Appeal from District Court, Harris CounError, Cent. Dig: $$ 1315, 1317, 1320, 1322, ty; Norman G. Kittrell, Judge. 1323; Dec. Dig. $ 219.*]

Trespass to try title by J. F. Wagner 2. TRIAL ($ 396*)—FINDINGS—CONFORMITY TO against M. P. Geiselman. Judgment for de EVIDENCE.

The trial court's conclusions of law and fendant, and plaintiff appeals. Affirmed. fact must be based upon the evidence introduced

E. T. Chew, of Houston, for appellant. W. on the trial, and not upon independent investigation and search for evidence by him.

F. Tarver, of Houston, for appellee. [Ed. Note.- For other cases, see Trial, Cent. Dig. $$ 935–938; Dec. Dig. $ 396.*]

REESE, J. J. F. Wagner instituted this 3. APPEAL AND ERROR (8 527*) RECORD action in trespass to try title against M. P. MATTERS TO BE INCLUDED.

Geiselman to recover lot No. 2 in block No. Where the trial court in overruling a motion for a new trial made additional findings, 52 in Foster's addition to the city of Houssuch findings were not a part of the record and ton. The lot is a part of the Harris third of could not be considered for any purpose. a league, and part of a tract of 127 acres

[Ed. Note. For other cases, see Appeal and conveyed by Harris to Richey; the title Error, Cent. Dig. $8 2381-2383; Dec. Dig. 527.1

afterwards coming to J. E. Foster. Defend4. ESTOPPEL ($ 28*)—EFFECT OF ANCESTOR'S ant pleaded not guilty and the statute of COVENANT AS AGAINST HEIR.

limitation of three, five, and ten years. Where a grantor's daughter, who inherited Plaintiff, by supplemental petition, pleaded such title as he had to a tract of land, purchas- estoppel against defendant to set up the ed a paramount title, the title did not inure to the benefit of a grantee of a part of such tract title under which he claims on grounds under her father's covenant of warranty; his which will hereafter appear. The suit was rights being limited to a recovery against the instituted in 1905, and tried January 3, daughter on the warranty to the extent of the

1912. Trial without a jury resulted in a value of any property inherited from her father.

[Ed. Note.-For other cases, see Estoppel, judgment for defendant, from which plainCent. Dig. $ 68; Dec. Dig. § 28.*]

tiff prosecutes this appeal. 5. TENANCY IN COMMON (8 20*)-ACQUISITION

[1] The trial court prepared and filed conOF PARAMOUNT TITLE.

clusions of fact and law. It does not appear Where the owner of a tract of 127 acres from the record that any request was made conveyed a lot therein, his daughter, who inher: for such findings; but no objection is made ited the part not conveyed, was not a tenant in common with the grantee, and hence a para- to their consideration on this ground, nor is mount title acquired by her did not inure to the any objection made to any of the fact findbenefit of the grantee.

ings by either party. We feel justified, (Ed. Note. For other cases, see Tenancy in Common, Cent. Dig. $$ 60, 61, Dec. Dig. 3 20.*1 therefore, in adopting the conclusions of fact,

so far as material. 6. APPEAL AND ERROR (8 1008*)-REVIEWQUESTIONS OF Fact.

[2] Mixed in with the conclusions are obIn trespass to try title against a person servations of the district judge which form claiming under a conveyance of 500 acres of part of such fact conclusions, and are omitland or more and being all of one-third of a league not theretofore sold, where the circum

ted. A considerable part of these conclustances strongly suggested that the land in ques- sions appear, from the statement of the tion had theretofore been sold by contract to judge, to be the result of independent invesplaintiff's remote grantor, although not deeded tigation and search for evidence, made by to him until afterwards, but did not point unmistakably to such a conclusion, whether it bim, and not based upon evidence introduced was so sold was a question of fact, and the trial on the trial. These cannot properly form *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dlg. Key-No. Series & Rep'r Indexes

any part of such conclusions, which are prop- / sold 800 acres of the land out of his third erly only the conclusions of the court from of a league, down to January 27, 1852, but the evidence introduced on the trial. How-the deed to Bremond is recorded in Book P. ever, no objection is made by either party p. 623, of the Records, while the two last to the consideration of these extrajudicial deeds before that, each for 100 acres, one conclusions. They do not appear to be ma- made May 23, 1851, and one January 27, terial. So far as material, the conclusions 1852, were not recorded until later, as the are as follows:

first appears in volume Q, p. 315, and the "S. M. Harris owned a third of a league other volume V. p. 683; but counting in those adjoining the corporate limits of the city of two deeds the whole amount of land that Houston, and some of it probably was inside Harris had sold out of his third of a league the corporate limits.

up to the time of making the deed to Bre"(2) Beginning on the 17th day of October, mond was 800 acres, six 100-acre tracts, and 1838, and continuing on down through 1839, four 50-acre tracts, therefore he had left 1840, 1847, 1818, 1851, and 1852, he sold off va- 676 acres. rious tracts of 100 acres and 50 acres, and on “(5) The deed to Benjamin Richey, under April 3, 1856, he made a deed to Paul Bre- whom the plaintiff claims, was made on the mond, describing the land as follows: •500 23d day of December, 1856, but was not reacres of land or more, lying partly within the corded until August 15, 1857. corporate linits of the city of Houston, and on "(6) Counting the Bremond conveyance at the north side of Buffalo Bayou, bounded on just 500 acres, for the purpose of a statethe west by lands sold to Dobie and the John ment, he sold altogether, including conveyAustin tract, and on the east lands original- ances made in 1858 and 1860 and 1863, ly belonging to D. Gregg, it being part of the 1,440 acres, and if there be added to that headright of Sam Harris of a third of a the 127 acres which he sold Richey, in 1856, league, and all of said one-third of a league but which was not recorded until 1857, he not heretofore sold is conveyed by the said sold altogether out of the tracts 1,567 acres, Harris.' This deed was recorded on April 4, or 91 acres more than there was in the whole 1856, in the deed records of Harris county. survey.

“(3) It was not made clear to me upon the "(7) It will be seen from these figures that, trial what lands he had sold, so in order to if the Bremond conveyance had been caladvise myself in the premises, I went to culated at only 500 acres, he would have had the records of one of the leading abstract | 176 acres left after he sold to Bremond, or companies and got a consecutive list of the 49 acres more than necessary to make up transfers and at the time the deed was made the 127 acres which he sold to Richey; but to Bremond, who got the land from Harris, his deed to Bremond called for 500 acres the latter party, Harris, being the source or more and described it as being all the from which both parties derive their title, land not heretofore sold and conveyed by 100 acres bad been conveyed to one Reynolds him. on the 17th day of October, 1838, and it “(8) Bremond lived until 1885, and his esadjoins the Austin on the west, that is to tate was administered on in this county, and say, its westline, beginning at Buffalo the property covered by the deed for 127 Bayou, was coincident with the east line of acres seems to have never been inventoried the John Austin to the extent, approximate- as a part of his estate; or at least the inly, of halfway up said west line of the Har- ventory called for 500 acres, and the lot in ris survey, and directly north of the Reyn-controversy is in the south end of the 127 olds land, and of the same width as it and the acres. Richey 127 acres, which had not been convey- "(9) A large part of the estate of Bremond ed when the deed from Harris to Bremond passed into the hands of the executrix of the was made. The next tract sold was that of estate of one A. P. Lufkin by foreclosure, April 19, 1839, of 100 acres to Dobie; so and the Lufkin heirs and the Bremond heirs the 500 acres ‘or more sold to Bremond did made deeds to the 500 acres, and the title in fact touch or reach the east line of the passed into the hands of James A. Baker Austin which is the west line of the Harris and George L. Porter. and the north end of the Reynolds out to the “(10) There appeared to have been Richey north end of the Harris survey, and it did go and J. E. Foster eleven conveyances, and J. east to the west line of the D. Gregg land, E. Foster, in 1874, divided the property covwhich west line was coincident with the eastered by the 127 acres into city lots and line of the Harris one-third of a league. It blocks, some of them in the extreme northwill be seen from the map that the Dobie ern or northeastern end of the city and some 100 acres lies between the Paul Bremond 500 perhaps beyond the city limits, and through acres and the Reynolds for the full length a lottery scheme he sold the property dividof the Reynolds and for a part of the way ed into lots, those drawing certain numberbetween the Bremond and the Richey 127 ed tickets getting certain lots, and one Miss acres.

Sternenberg drew one of the numbers and re"(4) The record shows that at the time ceived one of the lots, a conveyance being

lot passed down from her to the plaintiff in refers largely to these findings in support this case by a regular chain of title.

of some of the assignments of error, and to "(11) About the 14th day of September, the newly discovered evidence. Obviously 1898, James A. Baker and George L. Porter this can only be considered by the court in conveyed by special warranty deed, for a determining whether the trial court erred consideration which I find was not full value in overruling the motion for a new trial. of the property, the 127-acre tract platted by [4] The first assignment of error is based Foster into his said addition (which was the upon the assumption that the court found same land conveyed by Harris to Richey) to in the eleventh finding of fact, and that the F. S. Burke, and Burke, who was an attor- uncontradicted evidence showed that Violet ney at law and a solvent man, at once con- Foster inherited as heir of J. E. Foster, her veyed all of the blocks, except Nos. 53 and father, all of the unsold portion of the 12754, to Miss Violet Foster, the daughter of J. acre tract originally sold by Harris to RichE. Foster, who had died some years before, ey and which afterwards was conveyed to and the block 52, in which this lot is situated, Foster, and upon this assumption as to the was among the lots conveyed by Burke to facts, that when she procured through her Miss Foster, and he retained lots 53 and 54, attorney, F. S. Burke, the deed from Porter and Miss Foster conveyed the lot to the de- and Baker, the title thus procured inured to fendant, Geiselman, who had his title exam- the benefit of the vendee of J. E. Foster, ined, and who paid full value for the prop- Miss Sternenberg, under Foster's warranty erty he bought, which was the entire block of title, and to the vendee of Miss Sternen52, and I find that he purchased in good berg, the appellant. In the statement under faith, and I also find that Louis Stahl, who the proposition appellant refers for support bought from Miss Sternenberg, afterwards partly to the findings of the trial court on Mrs. Penton, and by whom the lot sued for the motion for new trial, to which reference was given to the plaintiff, purchased in good has been made and which cannot be considfaith,

ered. In the eleventh finding of fact the “(12) There is no limitation in the case, so court only finds that Violet Foster was the it is not necessary to refer to the question daughter of J. E. Foster, and there is no of possession and improvements; but the de- finding there, nor elsewhere in the conclufendant had had the property fenced since sions of fact, that she inherited the unsold his purchase.

portion of the 127 acres from her father. "(13) It was agreed that Foster sold a An examination of the statement of facts great many of the lots, just as he did to Miss shows that even this finding is not supported Sternenberg, and that many of the parties by the evidence, as there is no evidence that went into possession, and that either they or Violet Foster was the daughter of J. E. Fostheir vendees or those who were claiming ter. However, as there is no objection to the under their vendees are still in possession, conclusions of fact, the finding that Violet and there has been no attack made upon Foster was the daughter of J. E Foster must their title, and that the Foster estate had be accepted. It then appears that Harris been administered upon and the property of sold to Bremond all the unsold portion of 127 acres was administered as a part of the Harris third of a league survey, which his estate, or at least so much of it as he included the 127 acres which he subsequently had not sold prior to his death.

sold and conveyed to Foster. Bremond “(14) I find that the plaintiff has paid therefore had the title to this 127 acres, taxes on the lot in controversy as far back which afterwards passed into Baker and as the year 1896, and that the defendant Porter. When afterwards this title was achas paid taxes on the property regularly quired by Violet Foster, there is no princifrom 1901 up to this time, and that on mis- ple of law or equity under which this title cellaneous lots and blocks in the 127 acres, inured pro tanto to the holder of the title, or the Foster addition, parties claiming lots under warranty deed from J. E. Foster, of through and under Foster have paid taxes the lot in controversy. Even if she had inon them since 1874. This, however, does not herited from her father such title as he had apply to the lot in controversy, finding as to to the 127 acres, this would not prevent her taxes upon which is made above in the first acquiring for her own benefit the superior part of this paragraph."

title of Baker and Porter. The principle [3] Appellant filed a motion for a new trial that if A. conveys to B. by warranty deed, upon the ground, among others, of newly dis- and subsequently acquires a title superior covered evidence. This was overruled by the to that thus conveyed, it passes by estoppel court. The court thereupon prepared and file to his grantor, does not apply to this case. ed certain "findings" which are in the rec- The doctrine is well established. Baldwin ord. These findings are objected to by ap- v. Root, 90 Tex. 553, 40 S. W. 3, and cases pellee as forming no part of the record. cited. But it does not apply here. Violet They are properly no part of the record and Foster did not acquire this lot from her facannot be considered for any purpose. The ther by inheritance, at all events; the only court overruled the motion for a new trial, title she ever had to it is the title she got and that was the end of the matter so far from Baker and Porter. The precise quesas the trial court was concerned. Appellant tion presented by this assignment was de

cided adversely to appellant's contention by executor and heirs of Bremond, Instituted this court in Cleveland v. Smith, 113 S. W. by Violet Foster, to recover the 127 acres 550. The right of appellee to recover against or to remove cloud from her title, was inViolet Foster on the warranty of her fa- stituted after title had passed out of the ther to the extent of the value of any prop- Bremond estate. According to the statement erty she may have inherited from her fa- in appellant's brief, this suit was instituted ther is the extent of the right of appellee, November 26, 1888. So there was no title and would not affect the title of appellant. left in the executor or heirs of Bremond, In this case there is no evidence that would and Violet Foster got no title by her judgsupport even such a right, as there is no evi- ment. This probably accounts for the ease dence as to the value of such inheritance. with which she procured this judgment. So However, that principle of law could not that even if this newly discovered evidence, avail appellant here in any case. The as- which was made the basis for the motion for signment is overruled.

a new trial, had been before the court, and [5] Nor can the second assignment of er- properly in this record for our consideration, ror be sustained. The basis of the assign- it would not have helped appellant. There ment is that Violet Foster was the tenant in was nothing in such judgment to prevent common with Miss Sternenberg or her ven- Violet Foster from acquiring for her own dees of the lot in controversy. This could benefit, as against appellant and his vendors, not be. J. E. Foster conveyed this lot, or the title of Baker and Porter. such title as he had, entire, and there could What we have said disposes also of the have been no tenancy in common.

fifth assignment of error, which is overruled. [6] The circumstances shown to exist prob- By the sixth assignment of error appellant ably raised the issue of the existence of some complains of the action of the court in oversort of contract of sale from Harris to Richey ruling the motion for a new trial on the of the 127 acres prior to the sale of the en- ground of newly discovered evidence. This tire unsold portion to Bremond, which was evidence consisted of the pleadings and judg. known to Bremond prior to his purchase. ment in the case of Violet Foster against the The circumstances are strongly suggestive of executor and heirs of Bremond heretofore such a contract, and that Bremond knew of referred to. In attaching so much importit. Hermann v. Thomas, 141 S. W. 574. But ance to this evidence the trial court oversuch presumption was one of fact, and we looked the fact that at the date of the incannot say that the court erred in not so stitution of the suit the title had passed out finding, as is complained of in the third as- of the estate of Bremond. Even if this were signment of error. The evidence on this not true, however, we do not think that the point does not point so unmistakably to such judgment would have had the effect of passa conclusion as to compel such a finding. If ing to appellant or his vendors by estoppel the case had been with a jury, and upon sub- the title afterwards acquired by Violet Fosmission of the issue the jury should have ter from Baker and Porter. Cleveland v. found against appellant's contention on this Smith, supra. point, we would not have been authorized to [8] But the motion was properly overruled set such verdict aside. The circumstances on the ground that appellant had not shown in Hermann v. Thomas, supra, were of a such diligence in discovering the existence strongly similar nature; but the most that of this evidence and producing it upon the was said in that case was that they were trial as to entitle him to the new trial. Cersufficient to present the issue of a contract tainly we cannot say that there was such of sale from Sarah Goodman to Woodyard abuse of the discretion vested in the trial and Morgan of the 100 acres prior to the court in such case as would authorize us to conveyance of the unsold balance to Bour- reverse the judgment and grant appellant's geois. It will be seen from the court's con motion for a new trial on this ground. This clusions of law in this case that it declined action was instituted April 5, 1905, and tried to presume the existence of such contract of in January, 1912. The evidence was affordsale, from the evidence. We cannot say that ed by the public records of the district court this was error. It must be noted that in sup- of Harris county. Whether proper diligence port of this assignment appellant again draws would have enabled appellant to discover it largely upon the court's findings upon over before the trial could be better judged by ruling the motion for a new trial, which the trial court than by this court, so, both cannot be considered.

on the ground that the evidence would not [7] The fourth assignment of error is based have availed appellant and that there had entirely upon the newly discovered evidence not been sufficient diligence, we cannot say set out in the motion for a new trial and that the court committed error in overrulthe court's so-called findings thereon. As ing the motion for a new trial. these cannot be considered, the assignment We find no error in the record requiring must also fail. But independently of this reversal, and the judgment is affirmed. the evidence shows that the suit against the Afirmed.

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