Louder v. Schluter

COLLARD, Judge.

Mrs. Jemison was permitted to testify, over objections of defendants, that she had heard her grandfather Jemison say that Green B. Jemison was his son, and that she had heard her mother say he was her brother. These declarations were admissible in evidence to prove the relationship, both the declarants being dead. 1 Greenl. on Ev., sec. 103.

Appellants contend that the court erred in admitting in evidence the *106 order of sale and the confirmation thereof by the Probate Court of Marion County of the land in controversy, they having objected to the same because there was no evidence that the land had been inventoried as a part of the estate of Mary Nuckles, because there was no evidence that the order was made upon a written application, and because the order set out the ground upon which it was made to be “ that it was advantageous to the estate to sell the land.” None of these objections were tenable. It was not necessary to show that the land had been inventoried. The order recites that “the application of the administrator of the estate of Mary Nuckles” came onto be heard, “and it appearing to the court that due noticé of said application has been given as required by law, and that it is. more advantageous to sell the lands mentioned in said application, to-wit,”’ describing the lands. We need not speculate as to what was meant by the expression that “it was more advantageous to sell the lands mentioned,”' etc., but we can say it does not mean to put the grounds of the sale upon the fact that it would be advantageous to the estate to sell these lands. For aught that appears the order was granted upon a proper written application to pay debts. We are not called on to presume facts in order to impeach the judgment if such facts would in any manner affect the judgment if proved. Guilford v. Love, 49 Texas, 715 ; Tom v. Sayers, 64 Texas, 339 .

Appellants say that the court erred in instructing the jury that “the plaintiffs had read in evidence a deed from the administrator of the estate of G. B. Jemison to himself (plaintiff) and a deed from said administrator to one Smith.”

There is confusion in the court’s charge in respect to the source of plaintiff’s title as complained of, but we can not see how the mistake could have influenced the verdict. It was unnecessary to mention the deed to plaintiff at all. The court instructed the jury as folloivs: “If you believe from the evidence that Mary S. Nuckles was the sister and only heir of G. B. Jemison, to whose heirs the patent read in evidence was issued, you will find for plaintiff the land sued for.” The heirship of Mrs. Nuckles was the issuable fact in the case. The deed and the probate orders were documentary, and the court might well have assumed that they put the title in plaintiff if Mrs. Nuckles was the heir of Jemison. The extract from the charge on this point was more favorable to defendants than it ought to have been. It required the jury to find more than was necessary in order to a recovery by plaintiff; it required the jury to find that she was the sole heir of the deceased Jemison, when it was only necessary to find that she was one of the heirs. It has often been decided in this State that one tenant in common can recover for himself and his cotenants the entire tract of land owned by them from mere trespassers. Ney v. Mumme, 66 Texas, 268 .

Appellants assign the following error: “The court erred in that por *107 tion of his charge to the jury in which he tells the jury that' if the defendants had agreed not to pay for the land until the title was vested in them, the defendants, they would not be improvers in good faith, because there was no evidence authorizing such a charge, and because if it was a. fact that they were not to pay for the land until the title vested in them that could not affect their right to make improvements if made in good faith.”

Hone of the defendants except Mrs. B. M. Louder and A. J. Louder claimed compensation for improvements made in good faith. They claimed under a tax deed made by the tax collector to one J. B. Bansomeon the 3d of May, 1883, for taxes due for the year 1881.

Bansome conveyed the land in controversy to J. L. D. Louder and George Etter by special warranty deed dated September 7, 1883, on an expressed consideration of two promissory notes of same date, bearing 5 per cent interest per annum from date, due in four years and eleven months, each for $430.

Louder and Etter conveyed to A. J. Louder the land described in the latter’s special plea of valuable improvements, 370 acres, by general warranty; deed, of date September 35, 1885, reciting a consideration of $540 paid by note of even date, due in four years. Louder and Etter conveyed , to Mrs. M. B. Louder the 130 acres (upon which she claims to have made valuable improvements in good faith) by general warranty deed on June 35, 1886, reciting a consideration of $300 paid. She was the wife of J. L. D. Louder, who testified that she had paid nothing on tjie land except the taxes. It was in proof that neither Louder nor Etter had paid the purchase money on the land. There was no contract by Louder and Etter that they were to indemnify their vendees for improvements put on the land. The land had been sold to the State for taxes due before Bansome bought at tax sale and had not been redeemed at that time.

J. L. D. Louder testified that he consulted with an attorney, J. W. Brown, as to buying the land, stating to him all the facts except that the land had been sold to the State, and was advised that it would be safe to buy the land and make improvements. He further testified that he had never beard of the Jemison heirs before he bought; that he has been living adjoining the land for the last twenty years and had never heard of any one claiming the land up to thetime he and Etter bought it, except some ten or twelve years ago there'was a man who came out to look at it and claimed it, but he went away and has never been heard of since. The evidence does not show what information A. J. Louder had of the title at the time of his purchase or at the time he made his improvements, or what efforts he made to ascertain the facts.

It has been decided in this State that one holding under a defective tax title may be a possessor in good faith in the sense in which the term is used in the statute in relation to improvements. Good faith is the ques *108 tion, and it is a question of fact to be determined by the jury under the law. There may be a title in another superior to that of defendant, and such title may be known to him, yet he might believe and have good grounds to believe in his own claim to the property. Gaither v. Hamrick, 69 Texas, 92 .

A possessor “ must have reasonable grounds for the belief that he is the owner and ignorant that his title is contested by one having a better right;” but such belief and ignorance is not to be judged by the legal merits of the titles as viewed by one learned in the law, but from all the facts in evidence, the titles, and other circumstances as viewed by persons of ordinary intelligence and prudence.

It was said by our Supreme Court in a recent case that “ the existence of good faith is a fact to be established in such cases by evidence of other facts tending to show that the person asserting it at the time he made improvements on the land believed himself to be its owner and had grounds for such belief such as would ordinarily be satisfactory to one unlearned in the law but of ordinary intelligence, after having made such inquiry as the law presumes every person desiring to buy land will .make and as an ordinarily prudent man ought to make.” Holstein v. Adams, 72 Texas, 490 .

The court should have submitted the fact of good faith to the jury with . the law by which they could determine the fact. It was not correct for the court to instruct the jury that certain facts would destroy good faith, as that it could not exist if defendants had agreed not to pay for the land until the title vested in them. Whatever evidence there was from which such a conclusion could have been reached and xvhat such an inference would indicate if reached should have been left to the jury to be considered by them with other facts and circumstances in evidence. Such an inference might indicate bad faith in one case and not in another. It can not be held as a rule' that one who holds under an executory contract can not possess land in good faith against strangers, or that he must have the title vested in him before he could make improvements in good faith. The jury in this case might have concluded that defendants’ assertion of good faith was not sustained without the charge; and we do not intend to be understood as saying that the evidence was not sufficient to support such a finding, but we do mean that the issue should have been tried by the jury alone under all the facts and the law.

It will be seen from the foregoing that other assignments need not be noticed at this time.

Because of the error pointed out in the charge of the court, we conclude the judgment of the court below should be reversed and the cause remanded.

Reversed and. remanded.

Adopted June 10, 1890.