WHITE V. VAN HORN, 159 U. S. 3 (1895)

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U.S. Supreme Court

White v. Van Horn, 159 U.S. 3 (1895)

White v. Van Horn

No. 261

Submitted April 5, 1895

Decided June 3, 1895

159 U.S. 3


It is competent to explain by proof declarations of a privy in interest, admitted in evidence without objection, although they might have been found inadmissible if objected to.

An objection going to the effect, and not to the admissibility of evidence, should be disregarded.

A request to instruct a verdict for the defendant should be disregarded when the evidence is conflicting.

A request to charge may be disregarded when the court has already fully instructed the jury on the point.

The court should refuse to charge upon a purely hypothetical statement of facts, calculated to mislead the jury.

The law of Texas in regard to forgery considered.

An objection to one of a number of charges is unavailable when the charge, taken as a whole, fairly states the question which the jury is to decide by preponderance of proof.

When the defendant in an action of ejectment in Texas sets up that his title was founded on a warranty deed, and has the warrantor summoned in to defend, and the plaintiff recovers judgment, the defendant may have judgment against the warrantor for the amount of the purchase money, with interest from the day of the sale.

Page 159 U. S. 4

On the second of October, 1889, Widow Martha Ann Van Horn, Elizabeth Evans and her husband, David B. Evans, all three citizens of the State of Missouri, and Mary Ann Boling and her husband, W. W. Boling, citizens of the State of Kentucky, brought an action against Joseph L. White, a citizen of Hill County, State of Texas. The action was one of ejectment to recover a certain tract of land situated in Hill County. The plaintiffs claimed to be the owners of an undivided third each of the land for which they sued.

The defendant excepted to the petition upon the ground that it set out no cause of action, and then filed a general denial. He next pleaded limitations, under the law of Texas, of 1, 3, and 5 years. He averred his purchase and possession of the property in good faith, and alleged that he had put improvements thereon worth $1,125, for the value of which improvements he prayed judgment in the event of his eviction. In addition, he averred that he and George G. White, on the 20th day of May, 1882, purchased the property in controversy under a warranty deed from W. R. Baker for $1,230 cash and their note, due on the first day of December, 1882, for $2,460, bearing ten percent interest from date until paid; that they paid this note before maturity, with interest amounting to the sum of $2,570; that one-half of the total sum of the purchase money, or $1,900, was paid by him, and that Baker, as his warrantor, was liable, in the event of his eviction, to refund the same with eight percent interest from the date of the respective payments. He further alleged that on the 6th day of October, 1883, he bought from George G. White, for $3,789, the undivided half which had been acquired by the latter as above stated, and that George G. White also warranted the title, and would therefore be obliged to repay him, if the plaintiffs recovered, the amount of the purchase price, with interest. The prayer was that Baker and White be called in warranty to defend the suit, and that, if it was decided that the plaintiffs were the rightful owners of the property, there might be a judgment over against Baker for the amount of the price paid him, with interest at the rate of eight percent from the dates of the payments, and a like judgment against White, with interest from the 6th of October, 1883.

Page 159 U. S. 5

Baker, in response to the call in warranty, filed a plea to the jurisdiction of the court on the ground that he was not, at the time of the service of the petition, an inhabitant of the Northern District of Texas. Subsequently the death of Baker being suggested, his executors were made parties defendant to the call in warranty, and the same judgment was prayed against them which had been asked against him. The executors reiterated the plea to the jurisdiction filed by Baker, and in addition demurred on the grounds (1) of no cause of action, (2) because the defendant could not sue them on the warranty until actually evicted, and (3) because a call in warranty could not be engrafted on an action of ejectment, the sole purpose of which was the settlement of the controversy between the parties plaintiff and defendant in regard to their title to the property. The executors also insisted that even if they should be held liable under the call in warranty, they owed no interest from the date of the sale, because White had been in the enjoyment of the property from the time of his purchase. George G. White submitted his rights to the court with consent that if the case should be decided in favor of the plaintiffs, judgment should be entered against him for such amount as the court might deem proper. On the 25th of April, 1890, the plaintiffs filed their replication to the defendant's plea of limitations, in which they set out that they, the plaintiffs, claimed the property in controversy as the heirs at law of J. H. Chism, and that at the time of the taking of possession of the land in controversy by the defendant and those under whom he claimed, two of the plaintiffs, Mrs. Boling and Mrs. Evans, were married women, and consequently the statute of limitations did not run against them. The replication contained the further averment:

"Said plaintiffs further show that the defendant, on their claim of title to the land in controversy, deraign their title through a forged pretended deed of conveyance, to-wit, a pretended deed which defendant claims is a transfer of the head right certificate by virtue of which the land in controversy was patented by the State of Texas to J. H. Chism, and therefore in law said pleas of three and five years' limitations cannot prevail. "

Page 159 U. S. 6

The demurrer to the jurisdiction of the court to entertain the call in warranty was overruled, and the case was tried by a jury, resulting in a verdict for the plaintiffs for the whole amount of the land claimed and $350 rent. There was also a verdict in favor of the defendant for $750, as an allowance for improvements, and against the estate of Baker, under the calls in warranty, for $3,690, with interest at eight percent from October 2, 1887, and against George W. White for the sum of $3,789, with interest from October 6, 1883 at eight percent. After an ineffectual effort to obtain a new trial, the defendant, Joseph L. White, brought the case by error here, making as parties defendants in error the original plaintiffs, the executors of Baker, and George G. White.

The undisputed facts are as follows: the plaintiffs are the sole legal heirs of James Harvey Chism, who served in the army of Texas during her war with Mexico. In reward for his services, there were two land certificates issued to him in the name of "J. H. Chism." The first, known as "a bounty certificate," numbered 4,298, was certified on the 15th day of September, 1838, and covered 1,280 acres of land. The other was "a head right certificate," issued by the Board of Land Commissioners of Harrisburg County in the following form:

"The Republic of Texas"

"County of Harrisburg"

"No. 990 Class 2"

"This is to certify that J. H. Chism has appeared before us, the Board of Land Commissioners for the county aforesaid, and proved according to law that he arrived in this republic subsequent to the declaration of independence, and previous to August, 1836, and that he is a single man, and produced an honorable discharge, is entitled to one-third of a league of land, to be surveyed after the 1st day of August, 1838. Given under our hands at Houston, this 1st day of November, 1838"

"J. G. Hutchinson, President"

"John Woodruff, Associate Commissioner"

"Attest: Thos. Wm. Ward, Clerk"

Page 159 U. S. 7

On the 31st day of October, 1838, J. H. Chism, by a deed drawn in the County of Harrisburg, sold to R. B. Dobbins, for the sum of $500, the bounty certificate for 1,280 acres of land first above mentioned. The clerk of the Board of Land Commissioners for Harrisburg County, in the performance of his duty under the Texas law, made a return of the issue of the head right certificate, describing it as "a second class certificate, No. 990, issued in November, 1838, to J. H. Chism, for one-third of a league of land." In 1840, Texas created a "traveling board" whose duty it was to inspect the records of all the boards of land commissioners

"and ascertain by satisfactory testimony what certificates for lands had been issued by the respective boards to legal claimants, and report as soon thereafter as practicable to the Commissioner of the General Land Office such certificates as they find to be genuine, setting forth in their reports the number and date of the certificates, the quantity of the land, and the name of the person to whom it was issued."

1 Sayles' Early Laws of Texas, p. 385. In June, 1841, this board made its report to the General Land Office, and described the head right certificate here involved as follows: "Second-class certificate No. 701, issued November 1, 1838, for one-third of a league of land, to J. H. Chisholm." On the 27th of October, 1852, the following document was recorded in Harris County, Texas -- W. R. Baker being at that time the clerk of said county:

"Know all men by these presents that I, J. H. Chisholm, for the sum of $150 to me paid by E. M. Robinson, do hereby sell, transfer, and convey to the said Robinson, his heirs and assigns forever, my head right for one-third of a league of land, No. ___, dated November, 1838, issued by the Board of Land Commissioners for Harrisburg County, together with the land upon which the same may be located, to have and to hold the same to him, the said Robinson, his heirs and assigns forever, and I agree to warrant and defend the said claim against all claims whatsoever. Witness my hand and seal at Houston, December 2, 1838."

"J. H. Chisholm"


"George W. Lively"

"J. H. Southmayd"

Page 159 U. S. 8

"Republic of Texas"

"County of Harrisburg"

"Before me, Andrew Briscoe, Chief Justice of Harrisburg County, came J. H. Chisholm, the grantor above, and acknowledged to me that he signed and executed the foregoing deed for the uses and purposes therein contained, to certify which I have hereunto set my hand and seal of the county at Houston, December 2, 1838."

On January 2, 1858, J. M. Steiner deposited in the General Land Office of Texas the certificate No. 990, for one-third of a league of land, issued, as above stated, to J. H. Chism, and lands were taken up thereunder in Hill County, Texas, and patent was issued therefor. On the 25th of July, 1888, a copy of the paper which had been recorded in the County of Harrisburg was placed on record in Hill County.

The plaintiffs, as heirs of J. H. Chism, claimed the land covered by the patent issued under this head right certificate. Their case substantially depended upon testimony tending to show that, after serving in the army of Texas, Chism returned to Kentucky and stated that he was entitled to certain lands in Texas, and had with him papers so showing; that he subsequently went again to Texas for the purpose of looking after his land claims, and returned to Kentucky about November, 1838; that on his second return, he also stated that he had land in Texas, and had sold some, and that he then had papers indicating his ownership of land in that state. The testimony of his sisters and others tended to identify one of the papers which he had with him on this last occasion with the land certificate No. 990. There was testimony to the effect that he was a good penman, that he signed his name J. H. or J. Harvey Chism, and his name appeared as such on the army rolls and other official documents of the Republic of Texas. He died in 1839. After his death, in 1850 or 1851, his father placed the papers relating to the claim of the son for Texas lands in the hands of Augustin Moreman and gave him a power of attorney in order that he might visit Texas and perfect the claim. Moreman, with the papers in his possession,

Page 159 U. S. 9

proceeded to Texas for the purpose of executing his agency. On arriving there, he went to the land office, and exhibited the papers. The officers of the land office pronounced the claim valid and in all respects regular, but declined to act upon it because there was a defect in the power of attorney, it having been acknowledged by a Kentucky official and not by a commissioner of the State of Texas. In consequence of this fact, Moreman was unable to obtain the patent for the land, and left the papers with a Mr. Fergerson, in Austin, Texas and returned to Kentucky. Before a new power of attorney could be executed, the father of Chism died, and Moreman's arrangement with him was thus terminated. Subsequently, on the request of the mother of Chism, Moreman wrote to Fergerson for the papers, and they were returned in an envelope. Moreman handed over this envelope as he received it at the post office, without examination, to Mrs. Chism. There was also testimony tending to show that after this date, the heirs of Chism sent the papers thus received (which are not very accurately identified) to Texas for the purpose of obtaining the land, and that the papers thus sent, whatever they were, were burned by accident.

The deposition of Moreman was taken. Annexed to it was a certified copy of the original certificate No. 990, issued to J. H. Chism. This was shown to him, and he was asked whether the original, of which it was a copy, was among the papers which were turned over to him in 1850 or 1851 by the father of J. H. Chism, and in connection with which his power of attorney was given. Mr. Moreman answered:

"I have examined the above copy, and should say that the original of which it is a copy was among the papers turned over to me by the father of J. H. Chism. The language seems familiar, and I recognize some of the terms, as having an honorable discharge, and being a single man. The original paper was folded twice, and the folds were somewhat frayed with handling, looking like an old paper. The writing was remarkably effeminate. I cannot say definitely whether the original paper was returned to the father or mother of J. H. Chism or not. The last time I ever saw them was in Austin, Texas, in 1850

Page 159 U. S. 10

or 1851, in the month of May."

The witness then proceeded to state the facts connected with his employment, his journey to Texas, his going to the land office, and his failure because of the defect in his power of attorney.

The defendant's case was supported by the testimony of Baker, who said that he bought the certificate as the agent of one Robinson, and that at the time the transfer was drawn, the certificate was delivered to him by the seller. Describing the seller, he said:

"He represented that he had been serving in the army, and I have an indistinct memory that I called his attention to a discrepancy or difference in the spelling of the name, and that the explanation was that some people spelled it as it was pronounced, according to the sound."

He then testified that the original transfer was lost, and that the witnesses whose names purported to be affixed to it, and the officer before whom it purported to have been acknowledged, were dead, and that Robinson, the principal for whom he claimed to have acted in buying the certificate, lived in the State of New York, and was known to nobody in Texas except himself and family. His testimony in regard to Robinson was indefinite. He said that the man was alive some few years before, and was in New York, but gave no address by which he might be found. He further testified that he had sold this certificate, along with others, as the agent of Robinson to J. De Cordova, and that De Cordova had resold it to him; that, as the owner of this certificate, he had employed a man by the name of Steiner to apply for and enter land thereunder.

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