It seems to me that some of the statements made in the foregoing opinion, by Judge HALL, as to the admissibility of the evidence of Jerry Haxton and Samuel Robinson are in conflict with the former opinion of this court on motion for rehearing, and the disposition of the assignments, based on this testimony, as made by the Supreme Court. I, however, agree to the reversal of the case on the ground that under the particular facts of the case the appellee, claiming under the alleged deed from Joseph Jones to C. W. Haxton, was bound to furnish clear proof of the existence of such instrument, and its contents, and that the proof falls short of this requirement, particularly in respect to the description of the property conveyed by the deed, to the existence of which the witnesses testified.
While most of the facts of the case relied on by the appellee in support of the finding of the jury on this issue are stated either in the foregoing opinion or in the former opinions of this court in this case, I think a clearer understanding of the situation may be had from a condensed and connected restatement of such facts: Dr. Joseph Jones came to Texas from Indiana about 1875. Soon after that time C. W. Haxton, who had formerly worked for Dr. Jones in Indiana, also came to Texas, and worked for Dr. Jones as stableman for a year or two, returning to Attica, Ind., where he lived until his death, in 1902. In May, 1877, Joseph Jones and W. I. Garshwilder acquired title to sections 109, 111, 113, 115, and 117, H. A. and J. L. Cagle original grantees, in Floyd county, Tex. They conveyed, by joint deed, section 115 to John Weir, and then by exchange of deeds divided among themselves the other four sections, Dr. Jones thus securing title to sections 109 and 117. In 1878 Dr. Jones conveyed section 117 to Y. B. Dean. So far as the record title is concerned, he never conveyed section 109, and died owning it; and in 1910 his heirs brought suit against W. M. Massie, the appellee, to recover the land. Dr. Jones during his lifetime did not pay taxes on said section 109; it was not listed in the inventory of the property belonging to his estate; and there is no evidence of any ostensible claim of ownership of the section made by him or his heirs until about the time of the institution of this suit, it appearing that the heirs a short while before such time had been informed that the record title of this land appeared to be in Dr. Jones. After the return of C. W. Haxton to Attica, Ind., and as early as 1882, and at various times up to a short while before his death, the said Haxton stated to various persons that he owned some land in Texas. In 1886 he exhibited to Samuel Robinson a paper, which he said was a deed to him from Dr. Jones. In 1882 he exhibited an instrument to his half-brother, Jerry Haxton, which he said was a deed to a section of land in Texas, but did not allow the said witness to read it. This witness also testified that C. W. Haxton a few days before his death, in 1902, got out some papers, and said he was going to burn them, and, when afterwards asked about the Texas deed, replied, "Ashes tell no story." Louis A. Layman, Haxton's son-in-law, testified that Haxton lived with his family for several years, and on numerous occasions referred to his ownership of *Page 700 some land in Texas; that in 1879, and again in 1884, the said Haxton exhibited to the witness an instrument which the witness read and described as a deed from Joseph Jones and wife to the said Haxton to a section of land in Floyd county, Tex. The witness could give no further description of the land as contained in the deed. The deed conveying section 117 to Y. B. Dean was dated and acknowledged January 17, 1878, while the instrument, whatever it was, referred to in the notarial record of Julius Royer, was dated January 14th, but the acknowledgment of the wife of Dr. Jones was not taken until January 28, 1878. As stated by Judge HALL, this notarial record merely shows the execution and acknowledgment of some instrument by Joseph Jones and wife, the land merely being described as being located in Floyd county, Tex., with H. A. and J. L. King grantees. Neither C. W. Haxton nor any of his heirs ever paid any taxes on the land or made any other tangible assertion of claim to the property until after the institution of this suit, when, in 1911, they conveyed the land to W. M. Massie, the defendant.
In considering the sufficiency of these facts to establish the existence and contents of a deed from Dr. Jones and wife, whereby they conveyed the land to C. W. Haxton, we must bear in mind the distinction between those cases, in which some presumptions may be indulged in favor of the conveyance, and those in which strict proof is required of the execution and contents of the lost or destroyed instrument. In those cases where there has been a long-continued claim of title by one person, asserted in such open manner as to charge the other party with knowledge of the claim, and there has been a corresponding acquiescence by the other party in the claim, it may be presumed that the claim originated in a proper conveyance, and strict proof of the execution and contents of such conveyance is not required. Taylor v. Watkins, 26 Tex. 688; Herndon v. Vick, 89 Tex. 469, 35 S.W. 143; Fletcher v. Fuller, 120 U.S. 534, 7 S. Ct. 667, 30 L. Ed. 763. A very extended discussion of the reasons for this rule and its limitation will be found in the decision of the Supreme Court of this state, first cited, and that of the Supreme Court of the United States, to which decision our courts frequently refer with approval. It was said by the Supreme Court of the United States in the case referred to that "it is not necessary in the cases mentioned for the jury, in order to presume a conveyance, to believe that a conveyance was in point of fact executed. It is sufficient, if the evidence leads to the conclusion, that the conveyance might have been executed, and that its existence would be a solution of the difficulties arising from its nonexecution." In Texas the presumption, in aid of the right asserted as I have stated it, is merely one of fact to be considered by the jury, in connection with the other facts and circumstances of the case. Taylor v. Watkins and Herndon v. Vick, supra.
But the facts in this case are not sufficient to enable those claiming under C. W. Haxton to invoke the benefit of any presumptions in their favor. Baldwin v. Goldfrank, 88 Tex. 249, 31 S.W. 1066; Magee v. Paul, 221 S.W. 256-257. In the case first cited the Supreme Court said:
"In many courts it is held that proof of possession under the deed is necessary in order to establish such presumption. The rule that a deed or a power may be presumed after a long lapse of time is not an arbitrary one. It does not rest upon any consideration of public policy with reference to quieting titles to property. It has its just foundation in the principle that long and continuous acts of ownership, acquiesced in knowingly by those who hold an apparently adverse title, lead to the conclusion that the persons so exercising such rights have acquired the title. Since possession is the most indubitable act of ownership which can be exercised by a claimant of land, it would seem, in a country where there are no unoccupied lands, it is reasonable to hold that, without such proof of possession, the presumption of the grant will not be allowed. In a country, however, where much of its lands are unoccupied, a different rule should prevail; and therefore it has been held in this state, as in many others, that possession is not indispensably requisite to the presumption. Garner v. Lasker, 71 Tex. 441, 9 S.W. 332, and cases cited. In the case here cited there was payment of taxes under a deed purporting to have been executed by virtue of a power of attorney, besides other acts showing a continuous claim to the land, and it was held that the power might be presumed. That case, in our opinion, was decided correctly; but my recollection is that the court regarded it, as we now regard it, as pushing the doctrine to the very verge of authority. * * * The presumption of a grant or of a power from claim of ownership upon one side, and an acquiescence upon the other, rests rather upon the acquiescence of the latter than upon the claim of the former. Without proof of some unequivocal acts of ownership, long continued, and brought home to the adverse party, acquiescence in the claim cannot be established. The case presented is that of a deed which purports to have been executed by virtue of a power of attorney, and which, it is true, is forty years old, but under which no claim appears to have been asserted for a quarter of a century. The presumption would seem to be, not that the power did in fact exist, but rather that it did not exist, or that, for some other reason not disclosed, no title passed by the deed."
Haxton and those claiming under him paid no taxes on this land for more than 30 years; the only assertion of claim of title *Page 701 was to some section of land in Floyd county, but this claim was made in private conversations, a thousand miles or more away from the land and those who might be the adversaries in the claim thus made. The presumption, then, instead of being in favor of a deed to this land, is the other way, and, as stated by the court in the case of Mills v. Herndon, 60 Tex. 357, the defendant was required to furnish clear proof of the execution of the deed and its contents.
If we admit that the evidence is sufficient to show the existence and destruction of a deed from Dr. Jones, conveying to C. W. Haxton a section of land, with the grantee therein described as H. L. and J. L. King, in Floyd county, Tex. — and I am inclined to think the evidence is sufficient to warrant the finding of such fact — yet the conclusion that such deed described section 109, H. L. and J. L. Cagle, grantees, so as to identify and convey it, would have to be based on the presumption that since the grantor, Jones, had already disposed, or was contemporaneously therewith disposing, of the only other section of land owned by him in Floyd county, he intended to convey to Haxton the remaining section, 109, and that the deed was so drawn as to carry this intention into effect. I do not think we are warranted in indulging these presumptions in aid of the deed. I concede that the evidence leads to the conclusion that the conveyance might have, and probably did, name section 109 as the property conveyed therein, but I do not think this meets the requirement of proof in this kind of case. Tayloe v. Riggs, 1 Pet. 591, 7 L. Ed. 279; Capell v. Fagan, 30 Mont. 507, 77 P. 55, 2 Ann.Cas. 37, and authorities cited; Enc. of Ev. vol. 4, p. 216 et seq. ; Id. vol. 8, p. 357; in addition to the authorities referred to by Judge Hall. The court said in the case of Tayloe v. Riggs, supra, that —
"When a written contract is to be proved, not by itself, but by parol testimony, no vague, uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily; and, if that cannot be done, the party is in the condition of every other suitor in court who makes a claim which he cannot support. When parties reduce their contract to writing, the obligations and rights of each are described and limited by the instrument itself. The safety which is expected from them would be much impaired if they could be established upon uncertain and vague impressions made by a conversation antecedent to the reduction of the agreement."
In that case it was held that the testimony of a witness to whom the terms of an agreement were stated before it was reduced to writing was not sufficient to establish that such agreement was actually embodied in the writing. Testimony of such character might, of course, render it probable that the contents of the instrument as written in fact were as contended by the claimant under the lost instrument; but as held by the court in that case, and in numerous other authorities to which reference is made, testimony of such character is not sufficient to supply the contents of the lost instrument itself, except in those cases where some presumptions may be invoked in aid of the right asserted under the instrument.
All of the many fact cases cited by appellee in support of the sufficiency of the evidence in this case are cases in which the claimant made some tangible assertion of ownership, acquiesced in by the other party, so as to be entitled to the benefit of the rule of presumption referred to. It is true that the courts in many cases of this kind have said that after a long lapse of time the law, recognizing the frailty of human memory, will be more lenient as to the character of proof required to establish the existence and contents of an instrument executed and lost many years ago than if the facts were of recent occurrence. But these statements must be confined to the character of cases in which they were made, for, where there has been no tangible assertion of claim for many years, every rule of reason and regard for the safety of record titles would require clear proof in support of a claim, the assertion of which had been so long delayed, and the lapse of time, instead of relieving the burden upon the claimant, should rather add to it.
The voluntary destruction of the deed by Haxton, if it did not absolutely preclude him and those in privity with him from establishing its contents by parol evidence, would certainly tend to strengthen the presumption that the deed was insufficient to support the right now asserted under it.
These considerations lead me to conclude that the evidence in this case is not sufficient to support the finding of the jury on this issue.
I am authorized to say that Chief Justice HUFF concurs in these views. *Page 702