Massenberg v. Denison

After stating the facts as above, PARDEE, Circuit Judge, delivered the opinion of the court. This case has been here before on an appeal from a decree dismissing the complainants’ bill for want of equity, and is reported in 71 Fed. 618, 18 C. C. A. 280. This court then held that the facts charged in the bill, substantially as recited above, entitled the complainants to equitable relief, and. remanded the cause for hearing. After remand it appears that complainants filed in the circuit court an amended bill, setting forth the facts more explicitly, but presenting the same case as in the original bill. There was an answer and replication, and on the hearing the complainants introduced evidence establishing the facts alleged in the bill. The defendants offered no evidence. The court below filed no written opinion, but probably gave an oral one, for the appellants state, the question involved as follows: “The principal question in the case is this: Are the facts established sufficient to show a valid sale and transfer of a two-thirds interest in the land certificate in question to Henry Smith, as claimed in the bill?” and the appellees say: “The only question considered and passed upon by the trial court in this case was as .to the admissibility of the purported transfer of a two-thirds interest in the Denison land certificate by R. M. Hopkins, administrator of the Denison estate, to Henry Smith.” A careful scrutiny of the transcript shows, in regard to the purported transfer, that it was introduced in connection with the other documentary evidence of the complainants, and in the memorandum of offering the clerk notes as follows: “To the introduction of which the respondents excepted,” and the court did not pass upon, and at the time decide, the objections of the respondents noted above, but stated that it would “hear all the testimony offered, and pass upon and decide the objections in connection with reaching a decision upon the whole case.” The transcript nowhere shows the grounds or character of the objection, nor any motion to suppress the document referred to as evidence in the case. A party offering evidence is entitled to have the specific ground of objection stated. Beach, Mod. Eq. Jur. § 538. “So, too, if testimony is objected to and ruled out, it must still be sent here with the record subject to the objection, or the ruling will not be considered by us.” Blease v. Garlington, 92 U. S. 1, 8, 23 ' . Ed. 521. As this record stands, we might well pass upon this appeal without noticing any objection to the testimony introduced in the court below. However, we are clear that, as the purported transfer was apparently executed in 1839,. duly acknowledged by Richard M. Hopkins before the clerk of court in [22] Bed River county in 1858, and duly recorded in 1859, and is duly certified from the proper archives in Red River county, it was admissible in evidence as a duly proved and authenticated document. That document admitted in evidence and considered in connection with the other undisputed evidence of the complainants below, the defendants offering no evidence, we find that the complainants show a case' entitling them to equitable relief, and the first assignment of error is therefore well taken. We understand the appellees to contend that the complainants' failed to show a complete equitable title, because no order or decree of tlie probate court of Red River county authorizing Richard Hopkins, administrator, to sell the two-thirds interest in the Denison land certificate, is shown. There are two answers to this: (1) After CO years’ possession and use of the certificate and 25 years’ continued possession and use of the lands patented thereunder, improving the same, and' paying taxes thereon, such order of court referred to in the unimpeached transfer of the land certificate will, if necessary, be presumed; and (2) at the time of the transfer such land certificate was personal property, and no order of court was necessary for its legal sale and transfer. See Cox v. Bray, 28 Tex. 247; Dodge v. Litter, 78 Tex. 322, 11 S. W. 331; East v. Dugan, 79 Tex. 329, 15 S. W. 273. The act of Texas of January 22, 1836, among other.things provided, “All proceedings relative to successions, matters of probate,” etc., “shall be regulated and governed agreeably to the principles and laws in similar cases in the state of Louisiana;” and this was the law in Texas on the subject at the time of the alleged transfer. See 1 Sayles’ (Old) Laws Tex. p. 366. The act of Louisiana of January 17, 1838, in force at the time Hopkins, administrator, procured the land certificate and -sold the interest to Henry Smith, provides as follows: “That the article eleven hundred' and seventy-eight of the Civil Code of the state of Louisiana, be so amended that whenever satisfactory proof shall have been made to any judge of the court of probates, that a succession is so small, or is so much in debt, that noi person will apply for, or be willing to accept the curatorship, on complying with the existing laws on this subject, che judge of the court of probates, where such succession is opened, shall have the power without any previous notice or advertisement ,to confer the curatorship of such succession on such person as he may think proper. That the curator so appointed, shall cause the effects of said succession to be sold, and the proceeds to be applied to the payment of the debts of the deceased; the whole to be done in as summary a manner as possible, to diminish costs, and under the immediate direction of the judge of the court of probates; such curator to be allowed a reasonable compensation for his services; and shall not be compelled to furnish bond and security, except in cases where the judge shall deem it necessary, and that in all cases the judge of the court of probates shall fix the compensation of the curator, and tlie amount of security, when he requires it, provided that this law shall not apply to successions amounting to upwards of five hundred dollars.” Civ. Code La. (Morgan) page 168. In regard to this amendment the supreme court of the United States, in- Simmons v. Saul, 138 U. S. 439, 453, 11 Sup. Ct. 369, 373. 34 L. Ed. 1054, 1061, said: “The history of this provision leads to the conclusion that it was the intention of the legislature that administration of such small successions should [23] be granted without previous notice, and that tlie settlement by them should be done in as summary a maimer as possible.” The evidence shows (hat the estate oí Denison was in debt. There was nothing belonging to it except this land certificate, worth much less than $500. This being true, we are of opinion that no order of sale was required to pass a valid title to the land certificate at a time when (and for long after) such certificates passed from hand to hand on delivery with almost the same facility as promissory notes payable to bearer. All the equities in this case appear to be with the complainants below, appellants here. See Underwood v. Dugan, 139 U. S. 380, 11 Sup. Ct. 618, 35 L. Ed. 197; Wetzel v. Railway Co. (C. C.) 56 Fed. 919. The decree of the circuit court is reversed, and the cause is remanded, with instructions to enter decree in favor of the complainants as prayed for .in their bill.