William M. Stanley et al. v. B. H. Epperson, 45 Tex. 644

Moore, Associate Justice. The court did not err in overruling appellants’ application for a continuation, or if so, appellants have failed to incorporate in the transcript the facts showing such error. The affidavit is not in compliance with the statute. There is no averment in it that due diligence had been used to procure the testimony of the absent witness, nor are any acts of diligence shown from which the court could see that diligence had been used as is plainly required by the statute. Eor does the record aid the meager averments of the affidavit.

If the subpoena, alleged to have been served upon the witness, was returned, no notice is taken of it in the bill of exceptions, nor is it copied in the transcript. Unless appellants had brought themselves within the provisions of the statute, they cannot, therefore, complain unless it manifestly appeared from their affidavit or from the facts developed during the progress of the trial that the testimony was material for a proper trial of the case and the attainment of the ends of justice. (Chilson v.

Reeves, 29 Tex., 275.) The second error assigned is the overruling of appellants’ objection to the introduction of evidence to prove a purchase by appellee of the land sued for from Mrs. Mattie P. Henderson. The ground of this objection is, that appellants had no notice, by pleading or otherwise, that appellee claimed to have pmchased the land from Mrs. Henderson while they had notice that he claimed to have otherwise acquired it.

An inspection of the transcript shows, that no such evidence was offered or relied upon by appellee as that to which it is said in the assignment of errors and'bill of exceptions objection was made. Appellee did not claim or attempt to prove a purchase of the land from Mrs. Henderson, but from her husband, John D. Henderson. But if we consider the objections as made to the evidence offered to establish the title in fact relied upon, it is wholly untenable, and has no support from anything found in the record. Appellee’s petition is in the usual form in the statutory action of trespass to try title.

He does not attempt to deraign his title in the petition, nor did he give any notice whatever of the source from which he claimed to have derived it, or of the evidence on which he relied to establish it, so far as can be seen in the transcript, until developed in the trial before the jury. The only thing in the record giving the slightest color of support to the objection, is an affidavit by appellee to the effect, that he could not procure the original deed from appellants, William M. Stanley and S. A.

Stanley, to appellee; that it had been filed by him for record, but after diligent search it could not be found, &c. But if it was appellee’s intention to rely upon this deed, or a certified copy of it, the record fails to show that notice of the fact was given appellants. If, however, such notice was given, it gave appellants no ground of complaint, for it appears from the statement of facts that this deed is in support of appellee’s claim of title by purchase from Henderson.

But if it was not, is there the slightest authority for holding that the plaintiff in an action of this kind must give the defendant notice of the source from which he claims his title; or if he gives notice of the loss of a particular deed, or of the filing of a deed or certified copy of it to be used as evidence in the case, (Paschal’s Dig., art. 3716,) that he is estopped from showing title in some other way ? If there were other grounds of objection to appellee’s evidence, they were not made, and it would be now too late to consider them, if jDointed out.

The third error assigned is the refusal of the court to give the special charges asked by appellants. It would be an unnecessary consumption of time to comment upon and point-out the specific objections to each one of these ten charges. It will suffice to say that it manifestly appears the refusal of them by the court gives appellant no just ground of complaint. They are, all of them, palpably erroneous and unsound, or altogether inapplicable to the evidence. The objection to the charges given by the court is assigned as the fourth ground of error.

Some of these charges may not be in all respects strictly accurate. But in view of the facts to which they refer, there seems to be nothing in them calculated to do appellants injustice, or of which they have any just ground to complain. The issue upon which the case, as developed by the evidence, should be determined is fairly and substantially presented to the jury. The facts to be established by appellee to entitle him to a verdict were brought clearly and distinctly to their attention.

The legal propositions embodied in the charge seem to be fully supported by authority, and, in connection with the evidence set out in the statement of facts, fully warrants and sustains the verdict. The action, as has been said, is one of trespass to try title, brought by appellee against William M. Stanley and E. M. Stanley, the latter of whom did not appear; and, while the former filed answers of general denial and “ not guilty,” he seems on the trial to have made no defense on his own behalf. During the progress of the case, however, his wife, S. A.

Stanley, asked to make herself a defendant, alleging that a part of the land sued for was her homestead; and subsequently she seems to have held the position of the leading defendant. As no objection was made to Mrs. Stanley becoming a party for the purpose of asserting her alleged homestead rights, it is unnecessary for us to consider whether she was a proper party to the suit or not, or whether the homestead rights of the family might not have been just as well, if not more properly, asserted by the husband, as the head of the family.

It certainly has not been the practice in suits of this kind, when the family are residing upon the land sued for, to make the wife a party. Although Mrs. Stanley asked to make herself a party solely for the purpose of protecting her homestead, it is evident from the facts asserted by her that she can make no pretense that either she or her husband can justly claim that they or either of them are entitled to a homestead on the land or have a right to hold it under such a claim. It is not disputed that Stanley sold the land to Henderson, and that he and his wife executed and delivered a valid deed for it to Mr.

Henderson. It is perfectly well settled that an erasure or alteration of a deed after delivery, whether recorded or not, does not reinvest the title in the grantor or abrogate or annul the title of the grantee. (Herrick v. Malin, 22 Wend., 388; Morgan v. Elam, 4 Yerg., 375.) How, then, can cither Stanley or Mrs. Stanley have or assert any claim or interest in or to it? (Shelton v. Deering, 10 B. Monr., 405.) Whatever may be the effect of the erasure of Mrs. Henderson’s name from the deed and inserting appellee’s, it gave neither Stanley nor wife any title. When they conveyed the land to Mrs.

Henderson it ceased to be their homestead, if it had been so previously, of which, however, there is no proof in the' record. Though they were living upon the land when appellee bought it, the proof shows that it was, as Henderson’s tenants. The question in the case, then, is not whether appellants can claim the land as their homestead, but whether appellee has shown such title in himself as will support the judgment. It is not shown that the land was paid for, out of the separate estate of Mrs. Henderson; consequently, although the deed was made to her, the land must be held to have been community property.

Henderson could therefore sell it without his wife being a party to such sale. The testimony in the record is certainly amply sufficient to justify the jury in the conclusion that Henderson did so sell the land to appellee; that to effectuate this sale at the instance of Henderson, and with the knowledge and approval of Stanley, Mrs. Henderson’s name was erased and appellee’s inserted in the deed from Stanley and wife to Mrs. Henderson, all the parties at the time supposing that the land could be thus conveyed to appellee, and appellee, on the faith of it, paying Henderson a full and fair consideration for it.

While it is true the altered deed of itself cannot be held to be either the deed of Stanley and wife to Epperson, or a deed from Henderson to him, yet the facts show that it would operate as a fraud upon appellee to permit Henderson, in whom the title was vested, to deny that it has been thereby conveyed to appellee. He is therefore estopped from doing so. (Commonwealth v. Dudley, 10 Mass., 403, and cases before cited.) And certainly a stranger cannot make for him, or in his name, a defense or claim which he has not made, and which he would not he permitted to make if he was a party to the suit.

We also think the evidence warrants the conclusion, that, on the sale of the land by Henderson to appellee, Stanley recognized appellee’s title, and held under and in subordi.nation to it, and was thereby estopped from disputing it. And as Mrs. Stanley can make no claim to the land as her homestead or otherwise, so far as can be seen from anything in the record, the estoppel against Stanley is equally as effectual against her. It only need be said, in reply to the fifth assignment of error, that although the record shows that a motion for new trial was overruled, the motion is not in the transcript.

The grounds of the motion not being shown, it is impossible for the court to say whether there was any error in the ruling or not. There being no error in the judgment, it is affirmed. Affirmed,