Sydnor v. Texas Savings & Real Estate Investment Ass'n

rEESE, Associate Justice. This is a suit in trespass to try title brought by Seabrook W. Sydnor and others, heirs of J. S. Sydnor, against the Texas Savings and Beal Estate Investment Association, George E. Chase, J. J. Scholl, J. V. Formy and Joseph Suezmooth to recover a certain tract of land described as block 29 of the Holman Addition to the city of Houston. In their original petition plaintiffs claimed title as heirs of J. S. *142 Sydnor, deceased, but by amended petition they set up also title derived since the filing of the suit by purchase from heirs of Mosely Baker, who as assignee of James S. Holman, was the original patentee of the land, and they also made defendants certain other parties, heirs of said Mosely Baker. These last named parties also filed their plea in intervention, setting up their ownership of the land as heirs of Mosely Baker. Defendants replied to petitions of both plaintiffs and intervenors by pleas of not guilty, and of five and ten years limitation, and improvements in good faith, and also pleaded their title in reconvention against all parties. To the defendants’ plea of the statute of limitations plaintiffs replied pleading disability of coverture of Mrs. Sallie Baylor and Mrs. Kate S. Hopff, two of the plaintiffs. Upon trial before a jury there was a verdict in favor of the original defendants herein named, upon which judgment was rendered against plaintiffs and intervenors and in favor of said defendants upon their cross bill for the land sued for. Plaintiffs filed a motion for new trial which was overruled, and they bring error. Intervenors have not appealed. The facts are as follows: The tract of land in question is a part of the J ames S. Holman third of a league which was patented to Mosely Baker, assignee of Holman, in 1845. The survey was subdivided into lots and ten,acre blocks the same year. Mosely Baker conveyed, among other of said ten acre blocks, the block (29) in controversy to Wm. B. T. Batterson, May 12, 1845. This deed was recorded May 26, 1845, in the deed records of Harris County, Texas. The trial court held that the certificate of acknowledgment was insufficient to entitle the deed to be registered, but admitted the original record in evidence as a circumstance along with other evidence to prove the execution of the deed as against the intervenors, heirs of Mosely Baker, who have not appealed from the judgment. The record aforesaid, as proof of the execution of this deed, was offered by both plaintiffs and defendants, plaintiffs also claiming under the deed, so no question can be made on this appeal of the proper execution of this deed. The property was conveyed by Batterson to Chauncey B. Sabin, June 1, 1858, and Sabin to John S. Sydnor, the ancestor of plaintiffs, on August 23, 1862. Sabin has been dead many years. John S. Sydnor died in 1869. The plaintiffs are six of the seven children who survived him and are his heirs at law and devisees under his will. The other child, John B. Sydnor, has also been dead many years. The property was next conveyed by one J. T. Cyrus on April 24, 1863, to Francis and Ella Levy, which deed was recorded May 8, 1863. This deed is signed by John S. Sydnor and Robert Black as witnesses and is proved for record by both of them. The Levys conveyed to A. D. Crieff and James Byrnes, March 7, 1870, by deed recorded March 8, 1870. From Crieff and Byrnes the property has come through several mesne conveyances, all properly executed and duly recorded, to defendants. The missing link in the chain of title between the deed from Sabin to J. S. Sydnor in 1862, and the deed from J. T. Cyrus to Francis and Ella Levy in 1863 is filled in by circumstantial evidence tending to show *143 that the beneficial title and real ownership under the deed from Sabin to Sydnor was in Cyrus, and also by a deed from John B. Sydnor, oldest son and independent executor of the will of John S. Sydnor (who had died in 1869) of date March 1, 1870, and duly recorded March 8, 1870. This deed, for a recited consideration of $10 and the facts recited in the deed, conveyed the land in controversy to Francis and Ella Levy, and has the following recitals: • “Whereas, heretofore, to wit, on the 23 d day of August, 1862, Chauncey B. Sabin executed a conveyance to Jno. S. Sydnor, of and for the tract of land hereinafter described; said deed is recorded in Harris County record of deeds, book Z, p. 287; and whereas said Sydnor held said land, not for himself, but in trust for one J. T. Cyrus; and whereas thereafter, to wit, on the 24th day of April, 1.863, said Cyrus conveyed the said land to Francis and Ella Levy, as will be seen by reference to the deed made by Cyrus, which deed is recorded in Harris County aforesaid, in record of deeds, vol. 1, pp. 67-68; said deed is witnessed by Jno. S. Sydnor (by the name of S. S. Sydnor) and by Bobt. Black.” It was proven that John S. Sydnor died in 1869 and was, at the time of his death, making his home with John B. Sydnor, who was his oldest son, and with whom he had been at one time in business as partners. John S. Sydnor left a will whereby he devised his estate to his seven children, being the plaintiffs and the said John B. Sydnor, and John B. Sydnor was named as independent executor without bond, of his estate and qualified as such. John B. Sydnor died in 1875, being about 45 years of age when his father, John S. Sydnor, died, and was shown to have been a man of high character for integrity, and a careful business man. J. T. Cyrus was a resident of Houston where John S. Sydnor lived, in 1862, when the deed was made by Sabin to Sydnor. George Goldthwaite, the notary public before whom the deed from Cyrus to the Levys witnessed by John S. Sydnor and Bobt. Black was proven for record and who is dead, is shown to have been a man of scrupulous integrity and honor, and a personal friend of the Sydnor family. The executor of John S. Sydnor filed an inventory of the property of the estate in which the land in controversy was not included. Seabrook W. Sydnor, one of the plaintiffs and son of John S. Sydnor, has lived in Galveston and Houston since his father’s death in 1869, having lived in Houston the last ten years. He was about 25 years of age at the time of his father’s death. Hone of the heirs of John S. Sydnor have ever exercised any acts of ownership over or paid taxes upon this land, or asserted any claim to it until the filing of this suit, and were led to institute this claim by having their attention called to the fact that there was no deed from their father by some one who had examined the title about the time this suit was filed. There has been continuous assertion of ownership by those under whom defendants in error claim, evidenced by payment of taxes since 1873, and by a long chain of conveyances of different parcels of the land, which was subdivided in 1890 into lots, and the map of such subdivision duly recorded. The tract is in the residence portion of the city of Houston and much of it covered by residences. It was proven that S. K. Mcllhenny and T. H. Scanlan, who were *144 successively the -owners of the property in defendants’ chain of title, during the years from 1884 to 1890 inclusive, holding the same under recorded deeds, occupied, used and enjoyed the property continuously and paid taxes thereon during that time. The improvements on the property during this time consisted of a two story house and some fencing, that is, part of the lot was under fence in connection with the house which was occupied by tenants, first of Mcllhenny, the owner, and afterwards of Scanlan, to whom Mcllhenny sold. There is some conflict in the evidence as to the occupation of the lot, but the evidence of such occupation and use from 1884 to 1890 is strong, clear and positive, while the rebutting evidence is weak, indefinite and uncertain. Mrs. Baylor, one of the plaintiffs, was during all of this time and from 1860 up to this date under disability of coverture and her right is not barred by limitation. The trial court held that the deed from John B. Sydnor, executor, was not valid as a conveyance of the title of John S. Sydnor, for want of authority in the executor to make such a deed, but admitted it in evidence as to the recitals therein to the effect that John S. Sydnor held the legal title for the benefit of J. T. Cyrus, as a circumstance tending to establish that fact, along with other circumstances in evidence. Hone of the objections urged by plaintiffs in error to this action of the court can be sustained. The deed was shown to have been executed by John B. Sydnor, independent executor of the will of John S. Sydnor in 1870. Every fact and circumstance in connection with the title of this property, since that date, and up to the filing of this suit, is shown to have been consistent with the claim of title under the deed from Cyrus to the Levys and the recitals in the deed of John B. Sydnor, executor, and inconsistent with any claim of title on the part of plaintiffs in error. Even if it be conceded that the deed was not of itself a valid conveyance, which the executor was authorized to make, the recitals were admissible to establish the truth of the facts recited. The deed was ancient, the parties to the transaction were, dead; the recitals were against the interest of the party making them, as he was one of the heirs of John S. Sydnor, and are consistent with every known fact connected with the title. (Eskridge v. Patterson, 78 Texas, 420; Grant v. Searcy, 35 S. W. Rep., 862; Simmons v. Hewitt, 12 Texas Ct. Rep., 750; McCarty v. Johnson, 20 Texas Civ. App., 187, 49 S. W. Rep., 1098.) If J. S. Sydnor held the legal title under the deed from Sabin to him in trust and for the benefit of Cyrus, we think that upon the death of J. S. Sydnor his independent executor under the will would have been authorized to convey to Cyrus or to his vendees this legal title. There can be no doubt that in such case an executor or administrator acting under the orders of a Probate Court could be required to convey the legal title, and it is settled law that what a regular executor or administrator will be required by a court of probate to do, an independent executor will be authorized voluntarily to do. It is also settled law that the recitals of a power under which an ancient deed purports to have been executed is evidence of the existence of such power as, for instance, the recital that the deed is executed under a power of attorney. A power of attorney would have no more *145 force as authorizing the execution of a deed than, in the present case for instance, the fact that J. S. Sydnor held only the legal title in trust for Cyrus. Under the application of these principles it would seem clear, not only that the recitals in the deed of J. B. Sydnor, executor of J. S. Sydnor, were admissible as evidence of the existence of the facts recited, but that those facts being established, the power of the executor to execute the deed would follow. (Johnson v. Shaw, 41 Texas, 434; Storey v. Flanagan, 57 Texas, 654; Johnson v. Timmons, 50 Texas, 535.) The recitals in the executor’s deed of the existence of the facts which authorized its execution are the equivalent of the recitals in a deed purporting to have been executed under a power of attorney, of the existence of the power, and, in the one case as well as the other, such recitals, if the deed is an ancient instrument, are admissible to establish the existence of the facts recited. We need not go further in the present case, for proof of the existence of the facts recited establish Cyrus’s title as fully as the deed of the executor could do. There was no error in admitting in evidence the deed from J. T. Cyrus to Francis and Ella Levy. It was a lihk in the chain of title of defendants in error, not sufficient it is true, without evidence of title in Cyrus, to take the title out of the heirs of John S. Sydnor, but this objection goes to its weight and legal effect and not its admissibility. It was further admissible in connection with the evidence that it was witnessed by John S. Sydnor in whom plaintiffs in error claim the title lay, and was proven for record by him before George Goldthwaite, shown to have been a man of scrupulous integrity and a personal friend of the Sydnor family. We attach no weight to the fact, as recited in the deed of John B. Sydnor, executor, that the name of the witness was written S. S. Sydnor, or to the suggestion that there might have been some other person not the ancestor of plaintiffs in error of the name of J. S. Sydnor who witnessed the deed. It appears reasonably certain, from all the evidence, that' the J. S. Sydnor who signed this deed as a witness was the ancestor of plaintiffs in error under whom they claim. There was no error in admitting in evidence, over the. objection of plaintiffs in error, the deed from Francis and Ella Levy to Grieff and Byrnes. This was a necessary link in the chain of title of defendants in error, dependent for its force and sufficiency to pass the title, like the deed of Cyrus to the Levys, upon other facts to be established to show title in Cyrus. The objection to this deed was that “it was not connected with any evidence showing title in a common source with plaintiffs, or from the sovereignty of the soil.” This objection goes to the legal effect and sufficiency of the deed and not its admissibility. This deed, executed in 1870 and recorded at once, also contained the following recitals: “Being the same land conveyed by C. B. Sabin to John S. Sydnor by deed recorded in book Z, page 287, of Harris County records and by J. T. Cyrus to us by deed recorded in Harris County, volume 1, page 67-8. (Said last mentioned deed is witnessed by John S. Sydnor.)” Objection was also made to the admission of the deed *146 in evidence on account of these recitals. The objection is without merit. The recitals were a part of the deed, and besides, the fact recited is abundantly established by the deed itself from Cyrus to the Levys properly in evidence. Plaintiffs offered in evidence and proposed to read to the jury, as part of their evidence in rebuttal, affidavit of S. W. Sydnor that the deed from Cyrus to the Levys was a forgery, which was, on objection of defendants in error, excluded. There was no error in this ruling. The affidavit was made under the statute for the purpose of requiring defendants in error to prove the execution of this deed which, without the affidavit, would have been sufficiently proven by the certified copy of the properly recorded deed. It was not evidence for any purpose. (Cox v. Cock, 59 Texas, 524; Ehrenberg v. Baker, 54 S. W. Rep., 437.) The refusal of the court to give a reqúested charge upon the issue of estoppel arising from John S. Sydnor’s signing as a witness the deed from Cyrus to the Levys is assigned as error. There is no statement from the record in connection with this assignment and the assignment will not be considered. An examination of the court’s charge, however, shows that the issue of estoppel was fully and fairly presented upon the grounds presented by the requested charge. Under this charge the jury could not have found in favor of defendants in error on this issue unless they believed that J. S. Sydnor when he witnessed the deed knew its contents. There are several assignments of error to the refusal of requested instructions and to portions of the charge of the court. All of the requested charges refused, if they embody correct propositions of law and applicable to the facts of the case, are embodied in the court’s charge. The charge of the court contains a full, clear and explicit statement of the propositions of law applicable to every issue raised by the pleadings and evidence. Uo part of it is subject to the objection that controverted facts are assumed to have been proven, or that it is upon the weight of the evidence. We have examined the record very carefully. Upon the undisputed facts, as shown, the jury could not reasonably have come to any other conclusion than that John S. Sydnor held the title to the property in question for the use and benefit of J. T. Cyrus, a trust which as an honest man he never intended to repudiate, and which his executor as another honest man intended by his deed to the Levys to carry out. It is not reasonably conceivable that Cyrus would have gone to John S. Sydnor to witness the deed which he executed to the Levys if in fact Sydnor himself claimed the title to the property, or that John B. Sydnor would have executed the deed to them, with the recitals of the beneficial ownership of Cyrus, unless these facts had been known to him to be true. These recitals show that he knew of the property, and of the deed to his father, notwithstanding this, in the inventory filed by him as executor and sworn to contain a full statement of all of the property of the estate, he does not include this property, which fact can be reasonably explained only upon the hypothesis that, as recited by him in the deed, the deed from Sabin to John S. Sydnor was for the benefit of Cyrus, and Sydnor had no real interest in the property. *147 These facts taken in connection with the possession and active assertion of ownership under the title of Cyrus, and the non-assertion of claim by the heirs of Sydnor for more than thirty years, establish with such overwhelming force the claim of defendants in error, that no other verdict could have been properly rendered upon the facts. In addition to all of this, except as to the claim of Mrs. Baylor who was under disability, defendants in error made out, sufficiently to entitle them to a verdict on this issue alone, a title by limitation under the five 'years statute. We find no error in the record and the judgment is affirmed. Affirmed. Writ of error refused.