Albert Sidney Johnson's Administrator v. B. C. & J. F. Timmons et al., 50 Tex. 521

Bonner, Associate Justice. This is a suit of trespass to try title to the Henry Harper league of land in Harrison county, originally brought by Albert Sidney Johnson against Dushee Shaw. This is the third time the case has been before this court. (Johnson v. Shaw, 33 Tex., 585; Johnson v. Shaw, 41 Tex., 428.) The opinion of Judge Devine on the last appeal contains a full statement of the material facts and issues as there presented. The plaintiffs then and now claim title as follows: 1. Grant to Henry Harper. 2. Power of attorney from him to B. M. Fuller. 3. Power of attorney from B. M.

Fuller and Franklin Fuller to Frost Thorne, dated October 14, 1835, in which B. M. Fuller alone claimed to substitute Thorne in his stead as to this league. 4. Deed from Thorne to William Brookfield, date October 14, 1835. 5. Deed from Brookfield to plaintiff Albert Sidney Johnson, date February 10, 1840. On the last appeal, the defendants, in support of the judgment in their favor, mainly relied on two propositions— First. That no sufficient evidence was shown of the alleged power of attorney from Henry Harper to E. M. Fuller.

This missing power was recited in the one from Fuller to Thorne, and this recital was supported by the testimony of Louis Bueg, “jqdge of the first instance,” before whom the last-named power was executed, who testified that he then saw and had the same in his possession, and that he after-wards deposited it in his office, from which it was subsequently taken. It was not found on search therefor. Second. That title to the land in controversy was vested in the defendants, through George W. Gresham, who purchased the same, pending the suit, at an execution sale for costs.

This sale was attacked by the plaintiffs as fraudulent and void, because the executions were issued and sale made at the instance of the defendants on four dormant judgments, one only of which was against the plaintiff, which, it is claimed, had been paid by a deposit of money for that purpose; and because the sale was for a grossly inadequate price. Both these issues were elaborately considered on the last appeal, and the case, so far as they are involved, virtually decided in favor of the plaintiffs, unless new and material evidence had been found.

After a full review and application of the decision of this and other courts upon the question of the presumption which the law, under the circumstances, would raise as to the execution and existence of the power of attorney from Harper to Fuller, by the recital of it in the subsequent one from Fuller to Thorne, the learned judge says: “From a review of the cases cited, we are led to the conclusion that in this case the presumptive evidence is stronger, independent of the direct evidence of Bueg.” (41 Tex., 436.) Upon the second question, the validity of the execution sale to Gresham, he says: “ If sales of this character could be held valid, then it might be truly said that the officers of the court, under the pretense of collecting costs of court due them, can divest the citizen of vast interests, or, as in this, without lawful authority, under color of law, sweep away from the owner a large estate by a sale for such an insignificant amount as to shock the moral sense of every honest man. * * * It is one of that class of cases that comes with a forbidden aspect before a court of justice.” (41 Tex., 438.) On the last trial another verdict was rendered for the defendants, and the case as it again comes before us, presents the same two questions above stated, and an additional one, upon which, though testimony was introduced, no instructions seem to have been given by the court to the jury.

In this additional issue the defendants set up an outstanding title in George Hancock and Edward Ogden, and in support of it introduced an agreement dated October 11, 1858, and an addendum thereto dated January 6, 1860, between these two parties and George Duncan and the plaintiff' Albert Sidney Johnson, by which the league of land in controversy and three others were partitioned between them, and the Harper league- allotted to Hancock and Ogden.

The legal title, however, to all of them, was conveyed thereby to the plaintiff", with express power to perfect the titles, and to sell, dispose of, and manage the same “ exactly as if the property was all his own,” and in which he bound himself, his heirs, &c., to account with and pay over to the other parties the full proceeds which he or his representatives may have received, after reimbursing himself for costs and expenses. These two questions, heretofore passed upon in the former appeal, and the additional one now presented, áre those mainly embraced in the arguments and briefs of counsel.

The action of the court in regard to them is substantially embraced in the assignment of errors, and will be briefly considered in the order named. 1. On the trial below, counsel for plaintiff asked the court to give the jury the following special charge: “ That in considering whether Harper executed a power of attorney to E. M.

Fuller, if they find that Fuller executed a power of attorney to Frost Thorne on the 14th of October, 1835, before Louis Eueg, primary judge at Hacogdoches, and if they find that in said power of attorney from Fuller to Thorne it is stated that the power made to Thorne is made by virtue of a power of attorney from Harper, and if they find that said power from Fuller to Thorne is over thirty years old, then it is a presumption of law that said Harper made the power recited in that from Fuller to Thorne.” This special charge was refused, but the court, in the general charge on this question, instructed the jury as follows: “Ho power of attorney from Henry Harper to E.

M.

Fuller has been read in evidence before you, and it is for you to determine whether or not such power was given, and in deciding this question you are instructed to consider all the evidence that has been adduced before you on this point, including both that which tends to prove and that which tends to disprove the existence of said power, and to find for or against said power according to the impression made upon your minds by the evidence.” It is a well-established principle, that, in most cases where an instrument wrould be admissible in evidence as an ancient deed without proof of its execution, the power under which it purports to have been executed will be presumed. (Watrous v.

McGrew, 18 Tex., 513, and authorities cited; Dailey v. Starr, 26 Tex., 562; Hooper v. Hall, 35 Tex., 82; Veramendi v. Hutchins, 48 Tex., 531.) In the case of Hooper v. Hall, 35 Tex., 82, the recitals in this identical power of attorney to Frost Thorne were held sufficient evidence of the execution and existence of the power from Blossom to E. M. Fuller to one of the leagues therein mentioned. Mr. Greenleaf considers the question of the presumption of the due execution of an ancient deed as one of law. (1 Greenl.

Ev., sec. 21.) He further says that the weight of authority is against the proposition that proof of possession is indispensable to the admission of such deed in evidence. (1 Greenl.

Ev., secs. 21, 144, and note 1.) The circumstances of this case; the continued and persistent litigation by the plaintiffs in support of their claim against the possession of the defendants; the fact that no adverse claim seems ever to have been made by Harper or his representatives, in connection with the testimony of Rueg, furnished such corroborative evidence of the execution and existence of said power as to call forth from the learned and experienced judge who delivered the opinion in this case on the former appeal the following strong expression: “All these facts, with the evidence of Rueg already alluded to, show the fullness of proof on the part of the plaintiffs, and the manifest error in the finding of the jury on this, the principal issue in the case.” (41 Tex., 436.) Presumptive evidence is usually classed under two general divisions—presumptions of law and presumptions of fact.

The first class embraces those fixed legal rules deduced from the general results which usually follow the connection between certain facts, and is the mode by which the law defines the nature and amount or weight of evidence, either conclusive or prima facie, necessary to establish a given proposition. The second class embraces those mere natural arguments or inferences which belong equally to any and every subject-matter.

Presumptions of law, to explain which devolves upon the court, differ in this essential respect from presumptions of fact, which pertain exclusively to the jury,—the former are reduced to fixed rules and constitute a branch of the particular system of jurisprudence to which they belong; the latter are merely those natural promptings which are derived wholly and directly from the circumstances of the particular case, without the aid or control of any rule of law, and which are sufficient to satisfy the understandings and consciences of an ordinary jury. (1 Greenl.

Ev., secs. 33, 44.) As to the latter, as well said by the eminent jurist who delivered the opinion in Brown v. The State, 23 Tex., 200, “they are not rules of law, to be obeyed, but of reason, to be considered.” Under our statute it is made the duty of the court in the charge to the jury to decide and instruct them as to the law arising upon the facts. (Paschal’s Dig., art. 1464.) In Brown v.

The State, supra, it is held that the jury are the exclusive judges of the weight to be given to every part of the testimony, unless some part of it has an artificial importance or a certain degree of weight attached to it by the law. And it is said that “ it is the duty of the court to instruct the jury upon those legal presumptions and degrees of weight in particular testimony constituting exceptions to the general rule, not because they may be in consonance with enlightened reason and experience, but because they are prescribed rules of law pertaining to the weight of evidence.

So far only is the court required to enlighten the jury, upon the weight to be given to the testimony.” (23 Tex., 201.) In Mills v. Walton, 19 Tex., 271, it was held error in the court to refuse to instruct the jury that the law raises a presumption of fraud where the 'vendor of goods retains possession of them, for which the judgment was reversed. In Stoever v. Whitman, 6 Binn., 419, where the court below charged the jury that “they might presume a deed if the circumstances of the case would satisfy them that there was reason for such presumption,” it was said by Tilghman, Oh.

J.: “ These expressions are very vague, and rather tend to perplex than to direct the jury. What circumstances will justify the presumption of a deed, I take to be matter of law; and it is the duty of the court to give an opinion whether the fact proved will justify the presumption.” To the same effect is Cockey v. Smith, 3 Har. & J., 20, as cited in note 298 to Phillips on Evidence.

In such cases it is not required that the jury shall be absolutely controlled by these presumptions of law, unless they belong to the class of conclusive presumptions; but they are so far binding upon them as to make a pi'ima-facie case upon which they should find, unless the same is satisfactorily rebutted, and for a disregard of which, by their verdict, the court is authorized to set it aside.

We are of the opinion that the court, in view of the special charge asked, should have instructed the jury as to the presumption of law arising upon the recital of the power of attorney from Harper to Fuller, in that from Fuller to Thorne, and more particularly in the light of the former opinion of this court in this case. The failure to do this was error, which probably influenced the verdict of the jury, for which the case must be reversed. 2. As to the title of the defendants under the execution sale to Gresham.

As before stated, the opinion of this court on the former appeal virtually decides this issue in favor of the plaintiff', and eliminates it from the case, unless new and material testimony bad been adduced, which seems not to have been done. 3. The only remaining issue which arises in the record as presented, is the alleged outstanding title in favor of Hancock and Ogden. This is not adverse to the claim of plaintiff', but consistent with it, and, under the circumstances, essential to its existence.

By the instrument offered in evidence, the legal title to the land was vested in the plaintiff Albert Sidney Johnson, and he bound himself and his representatives to faithfully administer the trust thereby delegated. Heither before nor since his death have the other parties to this agreement contested his right, or the right of his representatives, to carry on this suit. They would now be estopped from denying this. But, at most, their right is but an equitable one. The defendants’ possession is in nowise connected with this equity, but adverse to it.

It has been held by this court that in trespass to try title an outstanding equity cannot be pleaded in defense, unless the defendant is shown to be connected with the same. (Shields v. Hunt, 45 Tex., 428.) The testimony under this issue should have been withdrawn from the jury, as it was calculated to mislead them and could not avail the defendants. The institution of this suit reaches back to the days of the Republic. Those first engaged in it as litigants, attorneys, and judges—the names of some of whom have become illustrious in history—have passed away.

It is left to a succeeding generation to end the litigation commenced by them. It is much to be desired that a suit so protracted should be finally ended, at least on the third appeal to this court. But in the light of the former decisions of the case, and in our opinion of the law as above expressed, the ends of justice have not been attained. As held in Lucketts v.

Townsend, 3 Tex., 134, the right of a court of last resort to reexamine questions of law, or to control the verdict of a jury under similar circumstances, even after three or more trials, has always been claimed in this and every other country where the laws have been properly administered. Judgment reversed and cause remanded. Reversed and remanded. [Chief Justice Moore did not sit in this case.}