Mooring & Lyon v. McBride

Stanton, Associate Justice. To entitle the appellees to recover in this cause, it was necessary for them to prove that B. A. Bauguss was the owner of the land at the time they purchased under the execution against him, or that he had some interest therein, subject to execution, which passed by the sale at which they purchased. It is not denied that, prior to the execution of the deed by Blaydes to Mooring & Lyon, the legal title to the land was in the former; but it is contended that Blaydes, prior to the time the appellees bought the property under the execution against Bauguss, executed to the latter a bond for title to the land, after having been paid a part of the purchase money; that Bauguss made valuable improvements on the land, and that such right as Bauguss had, under such facts passed to them by their purchase. That such state of facts existed it was necessary for the appellees to prove. This they attempted to do by proof of declarations made by Bauguss while he was in possession of the land. This character of proof was objected to, but the objection was overruled and the evidence admitted. The sole purpose for which the declarations were admitted, in so far as they related to the execution of a title bond by Blaydes to Bauguss, was to prove title in Bauguss; and the inquiry arises whether such evidence was admissible against the appellants for such a purpose. That the declarations of one in possession as against those who claim through him may be used for certain purposes is well settled. Thus, were this an action by the appellees, who hold by deed directly from Blaydes, it would be admissible for them, in an action [312] against one claiming through Bauguss, to prove the declarations of Bauguss, made while in possession, that he held through an executory contract made with Blaydes, and so,for the purpose of proving that Bauguss did not assert a title in fee to the land, and to show the character of claim he did assert. Many instances are given in the books in which declarations of persons in possession are held admissible for certain purposes. Wharton’s Law of Evidence, 1156 et seq.; 1 Greenleaf, 109, 123. But we know of no case' in which such declarations were admitted for the purpose of showing title in the declarant. After considering the several classes of cases and purposes in and for which such declarations are admissible, and illustrating that they are cases in which the declarations are termed, by the author, self-disserving, Mr. Wharton says: “But for this same reason such declarations cannot be used as evidence of title at all; they are only evidence of the grounds on which the tenant claims possession. For he might be but a tenant at will, and yet claim to be a tenant for life, which being less than the fee would be presumptively self-disserving, though really self-serving. In short, they are evidence that the occupant never pretended to have more than a limited right or estate, not as showing, or even tending to show, that he really had such right or estate.” Wharton on Evidence, 1156; McDow v. Rabb, 56 Tex., 159; Wallace v. Wilcox, 27 Tex., 60. The rule is, that one holding as tenant or otherwise cannot, by his declarations or admissions, affect his landlord’s title. Wharton on Evidence, 1161, 1169. Proof that Blaydes had executed a title bond, conditioned to make title to Bauguss on payment of the purchase money, could not be made by the declarations of the latter to that effect; nor could it be thus proved that a part of the purchase money had been paid. As against Bauguss, no proof of title in him, at the time the appellees bought under the execution against him, was necessary; for the sale under the execution would pass whatever title or interest he had which was subject to sale under the execution. If he had such an interest as is claimed by the appellees, it was subject to seizure and sale under the execution; but if he had only a claim to compensation for improvements made on the land, then, under former decisions of this court, he had no such interest as was subject to such sale. Hendricks v. Snediker, 30 Tex., 308. The charge of the court, in most respects, presented the law of the case correctly and fully; but it was defective in that it did not' inform the jury what the rights of the appellants were, if, in the [313] exercise of his right on failure of Bauguss to pay the purchase money, Blaydes rescinded the executory contract and sold the land to Mooring & Lyon; for, in such case, if Mooring & Lyon bought in good faith, and for their own benefit, and not to hold in trust for Bauguss or his benefit, it would be unimportant whether or not they had knowledge of an executory contract between Blaydes and Bauguss. The other assignments of error need not be considered further than they have been in effect passed on, but for the error considered the judgment is reversed and the cause remanded. [Opinion delivered October 31, 1884.] Reversed and remanded.