Lanier v. Perryman

West, Associate Justice.— There was in this case an order, entered during the term, authorizing the statement of facts to be filed within ten days after the adjournment of court. This event occurred on the 10th of April, 1880. The statement of facts was not filed until the 23d of April, 1880. The order entered below, being thus disregarded in this respect, this statement contained in the record will not be examined by this court. McGuire v. Newbill, 58 Tex., 314; Ross v. McGowan, 58 Tex., 603; R. S., art. 1379. In the absence of such a statement, this court cannot in this case determine whether the district judge ruled correctly or not in reference to the different points raised in the bill of exceptions on file. Tarlton v. Daily, 55 Tex., 92; Hutchins v. Wade, 20 Tex., 7; McMahon v. Rice, 16 Tex., 335; Lewis v. Black, 16 Tex., 652; McCarty v. Wood, 42 Tex., 39; Fulshear v. Randon, 18 Tex., 275; Cottrell v. Teagarden, 25 Tex., 317; May v. Ferrill, 22 Tex., 340. For the same reason the action of the court in refusing certain instructions asked by appellant cannot now be re-examined. Bast v. Alford, 22 Tex., 399; Pfeuffer v. Maltby, 54 Tex., 454; Armstrong v. Lipscomb, 11 Tex., 649; Cannovan v. Thompson, 12 Tex., 247. Nor can the alleged errors that are claimed to exist in the main chai’ge of the court be now examined. Smith v. Tucker, 25 Tex., 594; Frost v. Frost, 45 Tex., 325. There being, then, no matter in the record properly presented, so that it can-be here inquired into, the judgment of the court below must necessarily be affirmed; and this would properly conclude the case, but, owing to the nature of the suit brought, we deem it proper to add something more. ■ This is an action of trespass to try title, instituted before the enactment of the Eevised Statutes, and is therefore a case in which the appellant has the right to bring a second action. R. S., art. 4811; — 108 — Hall v. Woofers, 54 Tex., 231. For this reason we cleem it proper, without intending to make an authoritative and final disposition of any of the questions, to call attention to some of the matters in reference to the case disclosed by the present record, with a view to facilitate its more speedy disposition in the event of a second trial. The trial was had after the Eevised Statutes were in force. It appears that the counsel disagreed as to what should be contained in the statement of facts. On the last day of the term, the court entered an order extending the time for filing the statement of facts to the utmost limit allowed by the statute. R. S., art. 1379. On the 19th of April, 1880, the presiding judge seems' to have completed the preparation of the statement of facts, which it became his duty to prepare when the counsel were unable to agree. R. S., art. 1378. This, instead of being filed on that day or the two next succeeding days, did not reach the clerk’s hands until the 23d day of April. Whether this delay was caused by the action of the judge, who until nearly the last moment still had the statement of facts in his possession, or resulted from the negligence of counsel or of the clerk, or from some accident or inadvertence, we cannot determine. The judge also refused to sign the bills of exceptions prepared and tendered him in time by the counsel for the appellant, on the ground that they were not correct. This refusal of the court is called to our special attention, and is made the ground of the ninth assignment of errors, as follows: “ The court erred in refusing to give a bill of exceptions during the trial of said cause, and in failing at the time to make a proper memorandum thereof, and in afterwards refusing to sign the bill of exceptions prepared by plaintiff’s counsel, and in giving a bill of exceptions which does not show the ruling of the court upon all the questions ruled upon by the court adversely to the plaintiff.” On the last day of the term the judge signed and filed a bill of exceptions setting forth the matters excepted to correctly, according to his recollection on the subject. Whether the original bills of exceptions prepared by appellant’s counsel were submitted by the judge to the adverse party, or his counsel, or Avhether the supposed errors in the original bills were pointed out by the judge to the counsel who drew them, with a view to their correction; the record is silent. R. S., art. 1364; Firebaugh v. Ward, 51 Tex., 409; Houston v. Jones, 4 Tex., 170. The record is also silent as to whether the judge indorsed thereon his refusal to sign the original bills of exception presented to him (R. S., art. 1366), and returned them, as — 109 — the law required him to do, to the counsel having the preparation of the bills of exception in charge. • We are inclined to the opinion that such rejected bills, so indorsed, would constitute, for some purposes,- a part of the record, if filed promptly during term time by the counsel to whom they were returned by the judge. The bill of exceptions as filed by the judge seems to be somewhat imperfect and incomplete in reference to the admission of the evidence of the witnesses Hardin and Davis, in failing to show upon what ground their evidence was objected tol We must presume, however, from this bill that the counsel below objected to the evidence without stating any ground of objection whatever, if this presumption in favor of the bill of exceptions can be indulged in the absence of the appellant’s rejected bill. The bill also shows that appellant offered in evidence a copy of a deed from the appellee B. M. Perryman and wife to Joseph Bichard» son, dated in 1873, and that the appellee objected to its introduction. The precise ground of the objection made by appellee is not stated, but the judge gives in the bill the reasons why he excluded it. The bill of exceptions does not clearly Show that the appellee urged any of these objections to it when it was offered in evidence. The genuineness of the original of this copy appears to have been admitted by the maker, and either he or his co-appellee, Mrs. Bichardson, were charged in law with its custody. The fact, at all events, that such an original deed did at one time exist, and that a correct copy of it had been taken by some one, whether it was duly recorded and acknowledged or not, would seem to be in itself a fact proper to go to the jury, for what it was worth, on the issue of fraud and collusion between the Perrymans and Eichardson, as to the true date of the deed substituted by the judgment of the court, which was claimed to be dated 1st of August, 1874. The rejected statement of facts, which is signed by the judge and certified as correct, discloses that on the trial the appellant, in fact, made quite a number of other objections to the introduction of evidence, which were apparently overruled by the court, and which do not appear in the bill of exceptions prepared by the judge. Whether all of these objections were afterwards waived by appellant and ■purposely omitted from his rejected bill of exceptions, or were all in fact contained in that bill, we are unable to say with certainty. • The introduction ifi evidence of the judgment of March 19, 1878, purporting to substitute the alleged lost deed of August 1, 1874, -from R. M. Perryman to Joseph Eichardson, appears to have been ' objected to. The ground of objection is not given in the statement — 110 — of facts, and the fact that any objection ivas made at all is not mentioned in the bills of exception. This proceeding was had under the act of 14th April, 1874, and the act of 13th July, 1876. Gen. Laws, p. 45. This judgment of substitution had never been recorded, and in other respects it may have been liable to objection. Tet if the appellant contented himself with a general objection and then waived that, he could not expect the relief to appear of record in any way to be noticed. The testimony also of S. R. Perryman, as it appears from the statement of facts, in reference to whether1 or not there was collusion between Eichardson and E. M. Perryman in substituting, by the judgment of the district court, the deed of 1st of August, 1874, seems to have been objected to on the trial by appellees, and the objection sustained. What was the ground of the objection, if any, or why it was sustained, does not anywhere appear in this record as now made up. He could not testify as to what passed between the plaintiff Eichardson, his client in that suit, and himself; but he was not attorney for, or capable in any way of acting in that suit for, the defendant R. M. Perryman, and we know of no reason that would forbid him from giving evidence as to what passed between him and the defendant B. M. Perryman, if in fact anything did pass, growing out of that suit, that was relevant to the issue or likely to throw any light on the issue of fraud and collusion raised by the pleadings. It would seem to be the better and the safer practice, where the duty is devolved, as in this case, on the judge of preparing the bills of exception, to conform in every respect strictly with all the requirements of the statute. It would always be better for the bill prepared by the judge to show the substance of the bill that was originally tendered to him, as well as the fact of its tender and of his having presented it to the adverse party, or his counsel, where that was the fact, with their objections, if any; also the facts of his having pointed out the necessary corrections desired to the counsel who prepared the bill; that he had also indorsed the fact of his refusal to sign on the rejected bill, together with such other facts in connection with the preparation of the bill as might be deemed necessary to have the matter fully understood. The bill should also state fully the grounds of objection that were taken at the time to the admission or rejection of evidence. If, however, as a matt er of fact, the objection was made without stating any special ground, it would be best for the bill to show fully that the objection offered and passed on by him was a mere general objection. A clear state — 111 — ment of all these matters will place the revising court in^full possession of all the facts necessary to enable them, to pass intelligently upon the points thus presented. The action of the court, too, in refusing all the instructions asked by appellant, on the ground that there was no evidence at all before the jury, in any form, going in any manner to show collusion and fraud between Richardson and Perryman, seems to be in effect determining in a great measure the nature and character, if not the weight due to the evidence that was offered to the jury in support of the issues to be tried. There seems in fact to have been before the jury the evidence of the witness Cameron, which in some sort, at least, more or less, tended to show that the substituted deed was not lost, but might still possibly be in existence. There was also the .evidence of the witnesses 11 in ter and Branch, tending certainly to some extent to show that no such deed as that of the date of 1st of August, 1874, ever existed. There was also in evidence proof tending to contradict the testimony of these witnesses. There was also in evidence two certified copies of the original petitions filed in cases Ros. 1250 and 1251 of Richardson v. Perryman, that appeared to have at least some bearing on the real question in the case, which was as to whether or not the deed of R. M. Perry-man to Joseph Richardson did actually in truth exist, prior to the 11th of August, 1874, the date of the judgment under which appellant claimed. The appellant, it would seem, in any aspect of the case, was entitled to have this evidence submitted to the jury, accompanied with a proper instruction, on the subject of fraud and collusion. In the motion for new trial the fact is disclosed under oath that during the progress of the trial the point was made that the land in suit was not properly described in the original petition. This objection was probably raised during the argument of the cause. The description is not as full as it ought to be, and now, under the Revised Statutes, in addition to a proper description of the locus in quo, the character and extent of the plaintiff’s claim, and interest, it seems, should also be set out. R. S., art. 4786. If Jane Richardson be not the sole heir and devisee of Joseph Richardson, it would seem as if such heirs or devisees were also necessary parties defendant. R. S., art. 1202. We do not deem it proper, at present, to say more with reference to the acts of 14th April, 1874, and 13th of July, 1876 (General Laws of 1876, pp. 45-47), further than that it is not clear that the — 112 — judgment creditor, Lanier, would have been, under the facts of the case, a necessary party to the suit to substitute the alleged deed of August 1, 1874. He would undoubtedly, however, have been a proper party; but it would seem that not being made a party at all, he is in no way bound by that judgment. Hor should it prevent him from demonstrating by proof, if he can, that the original deed sought to be substituted did not bear the date of 1st August, 1874. To give that judgment such an effect would seem to be to give more weight to the judgment of substitution than would be accorded to the original deed itself if offered in evidence. The act of July 13, 1876, is practically incorporated in the Revised Statutes (arts. 4886, 4287 et seq.J. It has never yet, we believe, undergone judicial scrutiny, or received, so far as we are aware, judicial interpretation. As to the effect and scope of this act, see Report of Commissioners to Revise the Laws, January 1,1879, p. 30; Bispham’s Principles of Equity, part 3, ch. 3, p. 419; sec. 467, and authorities cited in note (3); Adams’ Eq., 166; 1 Story’s Eq. Jur., sec. 84 et seq. We do not deem it necessary to do more than to allude to the facts disclosed in the record, as to the nature and character of the supposed title of W. W. Perryman to a part of the land in suit. If the apparent title to this land was in fact, as the evidence tends somewhat to show, in R. M. Perryman, and the appellant purchased without any notice of the supposed claim or equities of W. W. Perryman in the land, the appellant would seem, under such a state of facts, to present some claim to be heard on account of his equity, as an innocent purchaser for value without notice. Without giving any further or more definite expression to our views as to the law applicable to the facts of the case, we conclude that the judgment below must stand, as we have not in this record the means before us of passing upon the merits of the case. The judgment is affirmed. Affirmed. [Opinion delivered March 9, 1883.]