Dunn v. Epperson

WILLSON, C. J. (after stating the facts as above). It is conceded by appellants Fee,. Jackson, and Stewart in their brief, and not questioned by either of the other appellants, that, if Tumlinson acquired the title of Nancy Walker to the original certificate No. 566, the title to the land in controversy was in B. H. Epperson September 6, 1878, when he died. Plaintiffs were unable to show by direct evidence that Tumlinson had acquired that title, and undertook to prove the fact by circumstances. For this purpose plaintiffs offered and the court, over objections to portions thereof interposed by said appellants and appellant Dunn, hereinafter stated, admitted as evidence, documents as follows: (1) A certified copy from the General Land Office of the proof made by Tumlinson of the loss of the original certificate issued to Nancy Walker as heir of William Walker, to procure the issuance of the duplicate certificate. The proof consisted of (1) the certificate of one Stone, “printer and publisher Texian Advocate,” dated April 15, 1848, showing that-a notice by Tumlinson, as the owner thereof, of the loss of “the headright of William Walker, number not recollected, for three-quarters of a league of land issued by the board of land commissioners for Washington county in August, 1836,” had been published in the Victoria Advocate “for nine weeks from the 18th of November, 1846”; and (2) the affidavit of said Tumlin-son, made November 3, 1848, “that he was the just and legal owner of the certificate issued to William Walker by” said board of land commissioners “for three-quarters of a league and labor of land, No. -, dated in August, 1838, that he had never sold, alienated, or transferred the same in any manner, that it has been lost, and that since lost he has neither heard or known of the same.” (2) A transfer, dated September 27, 1851, recorded in Red River county October 27, 1880, to Paschal from Tumlinson, in which he described the certificate thereby conveyed as follows: “A land certificate for three-fourths of a league and one labor, it being originally the certificate No. 566 issued in the county of Washington to Nancy Walker as heir at law of William Walker, deceased, and transferred by her by chain of transfers to me.” Plaintiffs then proved by instruments recorded in Red River county said October 27, 1880, that Paschal transferred the certificate to Temple, who transferred it to Shugart, who transferred it to Morrill, who by a deed dated February 10, 1860, transferred it to said B. H. Epperson. Plaintiffs further proved facts, among others, as follows: At the instance of said Ep-person, surveys were made by virtue of the duplicate certificate as follows: In Titus county, in November, 1860, a survey of 8,055,188 square varas, and a survey of 7,301,109 square varas; the last-mentioned survey being the land in controversy here. And in Red River county, on Blossom Prairie, in May, 1867, a survey of 8,839,169 square varas. In a letter, dated July 21, 1870, to the Commissioner of the General Land Office, Epperson as the owner thereof abandoned the survey of 8,055,188 square varas made in Titus county, and on March 31, 1871, said commissioner issued and delivered to Epperson a certificate, No. 16/383, authorizing him to locate 12,448,892 square varas, as the part then unlocated of the duplicate certificate. Said certificate No. 16/383 seems to have been applied by Epper-son to the survey of 8,839,169 square varas which had been made in 1867 by virtue of the duplicate certificate. In April, 1872, the Commissioner of the General Land Office issued and delivered to Epperson a certificate, No. 17/224, authorizing him to have 3,609,-723 square varas surveyed as the balance then unlocated of said certificate No. 16/383. By virtue of said certificate No. 17/224, a survey of said quantity of land, to wit, 3,609,723 square varas, was made for Epper-son in Red River county in November, 1874. The survey of 7,301,109 square varas in Titus [841] .county, and the surveys of 8,839,169 and 3,609,723 square varas, respectively, in Red River county, together aggregated the amount of land specified in the duplicate certificate. Each of the three surveys was patented to the heirs of William Walker, deceased; the one in Titus county March 29, 1871, as hereinbefore stated, and those in Red River county April 18, 1872, and September 12, 1876, respectively. The patent on the survey in Titus county was delivered by the Commissioner of the General Rand Ofliee to Epperson at the time it was issued, and it was shown that the patents issued on the two surveys in Red River county were found after the death of said Epper-son among papers belonging to him. During his lifetime Epperson subdivided the survey on Blossom Prairie, in Red River county, and sold parts of same to different parties. After his death the other parts of the survey were sold by his legal representatives. The deeds conveying the respective parts of said survey were all of record in Red River county as long ago as 1880. It seems that the purchasers of parts of said survey, at or about the dates of their' respective purchases, took, and thereafterwards, either in person or by their vendees, continued in actual possession each of the part he had purchased, and paid taxes assessed against the same. No claim of title adverse to the title asserted by Epperson to said survey seems ever to have been made by any one. But it • appeared that the purchasers of the parts of said survey, or their vendees, commenced and prosecuted in the district court of Red River county a suit against the unknown heirs of William Walker, deceased, and Nancy Walker, deceased, to remove cloud from their title to the land, and that the suit resulted in a judgment rendered May 31, 188S, awarding them the relief they sought. The land in controversy was inventoried as property belonging to said Ep-person’s estate after his death. It seems to have been overflow land and used only as a pasture until 1909, when appellant Dunn sold it to appellants Fee, Jackson, and Stewart; except that the testimony of the witness Susan Smith indicated that she and her first husband, Brad Welch, claiming under a sale of 192 acres thereof by Epperson to James Welch, Brad Welch’s father, for many years lived on a part of said 192 acres. It was shown that the taxes on all but 200 or 300 acres of the land for the years 1874, 1875, and 1876 were assessed against Epper-son, and there was testimony sufficient to support a finding that for many years after Morrill conveyed to Epperson it was known in the neighborhood as the “Epperson land,” and that no other person than Epperson asserted a claim to any part of it except the 192 acres mentioned as having been claimed by Welch. In fact, it seems that no claim to- any of the land surveyed by virtue of the duplicate and unlocated balance certificates mentioned, other than the one asserted by Epperson and his vendees and heirs, was evef made by any one in any way prior to September, 1901, when Spartan Berry and Alice .O. Martin, as the heirs of William Walker, Jr., brother to Nancy Walker, conveyed the survey in controversy to one Cole, whose title appellant Dunn acquired, except that in 1886 the William Walker under whom the appellant Yantis claimed conveyed it to a trustee to secure a debt he owed to one F. E. Walker. [1, 2] It is insisted that the recitals in the proof of loss of the original certificate and in the transfer from Tumlinson to Paschal were inadmissible to prove that Tumlinson owned the original certificate, and that the other facts shown of themselves did not authorize a finding that Tumlinson owned said original certificate. It is not believed that either of the contentions should be sustained. In the brief of the appellants Fee, Jackson, and Stewart it is conceded, and it is not denied by either of the other appellants, that the proof of loss was admissible for the purpose of showing the regularity of the issuance of the duplicate certificate. As we think this admission should be construed as an abandonment of the contention that the proof of loss was irregular and not an archive of the General Land Office, the objection to it on those grounds will not be considered. The other grounds of the objection had reference to recitals in the proof of loss and wére the same as those- urged to the admissibility of recitals in the transfer from Tumlinson to Paschal, to wit, that they were hearsay and self-serving. Plaintiffs had a right to show, as a circumstance tending to support their contention,, that Tumlinson claimed to own the original certificate at the time the duplicate thereof was issued, and claimed to own the duplicate at the time he conveyed it to Paschal. Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033. If there was any other way, certainly there was no other more satisfactory way, to prove that he claimed to own those certificates at the times stated than to show that he then said he owned same. That he said he owned the certificates doubtless was a mere legal conclusion, and not of itself sufficient to prove Ownership; but it was not hearsay when offered as a circumstance from which, considered with other circumstances, to infer that he owned the certificates. That the recitals should be classed as self-serving: may be admitted, but that they were did not, we think, render them inadmissible as evidence that Tumlinson then claimed to own the certificates. Where the fact that a person at a given time claimed to own property in controversy is relevant and competent as a circumstance to support an inference that he did then own it, we do not understand that testimony offered to prove the fact is inadmissible because it is a self-serving declaration of that person. Hickman v. Gillum, [842] 66 Tex. 316, 1 S. W. 339; Lockridge v. Corbett, 31 Tex. Civ. App. 676, 73 S. W. 98. We are of opinion, therefore, that the recitals, in so far as they were offered to prove that Tumlinson claimed to own the certificates, were not subject to the objection urged to them. It is insisted, however, that, on the grounds stated, the recitals were inadmissible to prove the truth of matters they stated as facts. The trial being by the court without a jury, if the recitals were admissible for any purpose, it should be assumed that the court considered them for that purpose alone, and the fact that they were inadmissible for other purposes would not be a reason for reversing the judgment. But we are of opinion that the court, under the circumstances of the case, had a right to consider the recitals as evidence of the truth of the facts they stated. Harrison v. Fryar, 8 Tex. Civ. App. 524, 28 S. W. 250; McMahon v. McDonald, 51 Tex. Civ. App. 613, 113 S. W. 322; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033. As shown above, the proof of loss was made in 1848, and the transfer to Paschal in 1851, more than 60 years before the cause was tried, when, presumably, Tumlinson and Paschal were both dead. The proof of loss was filed in the General Land Office at the time, or before, the duplicate certificate was issued, and in 1880 the deed to Paschal was spread upon the records of Red River county, where land had been surveyed by virtue of the duplicate certificate. It was shown that all the records of Titus county, where the land in controversy was situated, were destroyed by fire in September, 1S95. And it was shown that from the time Morrill conveyed the duplicate certificate to him in 1860 to the time this suit was commenced, to wit, March 4, 1911, Epperson and those claiming under him continuously asserted title, first, to the certificate, and then to the land located by virtue of it, and that until a few years before the suit was filed no one else asserted title to either the certificate or the land. We do not regard the cases cited by appellants as supporting their contention, when considered with reference to their respective facts, as opposed to the views we have expressed. [3, 4] But if the recitals objected to in the documents referred to were inadmissible and should not have been considered by the court for any purpose, it should be assumed the court did not consider them, and, if the other testimony was sufficient to support an inference that Tumlinson had acquired the title of Nancy Walker, the judgment should not be sot aside for the errors of the court in admitting the documents as evidence. We are of opinion the other circumstances shown by testimony were sufficient as a basis for the inference. As before stated, it was shown that B. H. Epperson died September 6, 1878. He left a will which was probated October 2, 1878, in which he named J. P. Russell and R. B. Epperson as his general executors, and E. S.. Epperson as his executor to manage and control a certain plantation for a period of five years, after which said E. S. Epperson was to act with J. P. Russell and R. B. Ep-person as general executors of the will. October 8, 1878, Russell and R. B. Epperson qualified as general executors and E. S. Ep-person qualified as executor for the special purpose stated. Appellants Dunn, Fee, Jackson, and Stewart offered in evidence a judgment rendered in a justice court of Marion county March 29, 18S0, in favor of *W. S. Harris against “J. P. Russell and R. B. Epperson as executors of the last will and testament of B. H. Epper-son, late of Marion county, deceased,” and against A. U. Wright, for the sum of $113.-32. The judgment, on objections thereto interposed by plaintiffs, was excluded as evidence, and the action of the court in excluding it is assigned as error. We are inclined to think the judgment was not inadmissible on any of the grounds urged against it, but we do not feel called upon to determine whether it was or not, for if it was admissible the error of the court in excluding it, on the record as it is presented to us, would appear to be harmless. It does not appear from the bill of exceptions made the basis of the assignment presenting the contention, or otherwise from parts of the record we are authorized to consider, that said appellants offered to prove that the land was sold under the judgment in question. Unless the land was lawfully sold under the judgment, their rights could not have been prejudiced by the refusal of the court to admit the judgment as evidence. [5] Appellant Dunn insists that plaintiffs “were not entitled to recover of the defendants Fee, Jackson, and Stewart any rents for the use of the premises, and therefore those defendants were not entitled to recover against him any interest on the money for the purchase of said land.” The contention is predicated on the claim that it appeared from the testimony that the land was wild, unproductive, and without rental value, except for improvements placed on it by said Fee, Jackson, and Stewart after they purchased it in 1909. As we understand the record, it did not conclusively appear that the land was without rental value. The witness Moore testified that by an arrangement he had with Thomas (or one Holbrook, as Thomas’ agent), who conveyed the land to appellant Dunn in May, 1903, he fenced the land, and thereafter wards while Thomas owned it, and until Dunn sold it to said Fee, Jackson, and Stewart in April, 1909, used it as a pasture for horses and cattle, having on it at times as many as from 700 to 800 head. He further testified that at the time he fenced it about 100 acres of the land had been cleared, but, he added, that the cleared part was not cultivated during the time he used the land as a pasture. He further testified that while [843] he had possession of the land he “cleared off a little field and planted a little crop”' on it. It further appears from the statement of facts that it was agreed between the parties that 40 acres of the land had been cleared (when, not stated); that 80 acres of it, lying north and west of the slough, were in cultivation ; and that 6 acres south of the slough were in cultivation. In view of the testimony referred to, we do not think it can be said to have so conclusively appeared that the land was without rental value as to require us to hold that there was no basis for the finding in plaintiffs’ favor against Fee, Jackson, and Stewart for rents. [6] As stated above, appellant Yantis claimed that the duplicate certificate by virtue of which the land was surveyed was issued to William Walker as the heir of Nancy Walker, deceased, and that he had acquired the title of that William Walker. The contention was that there were two William Walkers — one in whose right the original certificate was issued to Nancy Walker, and the other, one to whom the duplicate certificate was issued as the heir of Nancy Walker. If the testimony in the case warranted a finding that the William Walker named in the duplicate certificate was not the William Walker named in the original certificate, the judgment as to said appellant Yantis would have to be affirmed because of his utter failure to show that the William Walker, whose title he had acquired, was the William Walker to whom the duplicate certificate was issued. But the testimony admits of no other reasonable conclusion than that the William Walker mentioned in the certificates was one and the same person. It conclusively appears from the record that the William Walker who acquired the right to the original certificate was dead when it was issued in August, 1838, and it as conclusively appears that that certificate was issued to Nancy Walker as his heir. That the William Walker mentioned in the duplicate certificate was the William Walker mentioned in the original certificate, we think almost conclusively appears from the face of the duplicate certificate itself as set out below: “1014/1118. General Land Office, Austin, December 14, 1848. “This is to certify that satisfactory evidence having been produced of the loss of headlight certificate No. 560, class 1st, issued by the board of land commissioners of Washington county to Wm. Walker, heir Nancy Walker, for three-fourths of a league and one labor of land, date not recollected, this duplicate will, therefore, entitle the legal representatives of William Walker, dec’d, to all of the benefits granted in said original certificate. In testimony,” etc. Evidently the Commissioner of the General Land Office intended by the language he used to be understood as meaning that the legal representatives of the William Walker in whose right the original certificate was issued, and not the legal representatives of some other then deceased William Walker, were the beneficiaries of the certificate. But if he meant some other William Walker than the one in whose right the original certificate was issued, it could not have been the William Walker under whom appellant Yantis claims, for that William Walker, it appears from testimony offered by said Yantis, was alive in 1886, whereas the William Walker mentioned in the duplicate certificate was dead in 1848. The judgment is affirmed. 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