The appellees, on January 3, 1910, filed this suit in trespass to try title in the district court of Floyd county, Tex., against the appellant, to recover title and possession to survey 109, block 1, in said Floyd county, Tex.
The appellant answered by general denial, plea of not guilty, and the 3, 5, and 10 year statutes of limitation.
The case has been before this court on former appeals and is reported in volumes 159 S.W. 315, 226 S.W. 695, 258 S.W. 244. It has also been before the Supreme Court on writ of error, and is reported in volumes110 Tex. 558, 222 S.W. 962, and (Tex.Com.App.) 270 S.W. 544.
Appellees base their claim on a patent dated February 19, 1877, issued by the state of Texas to H. A. and J. L. Cagle, assignees of Adams, Beatey, and Moulton, to survey 109, block 1, land script No. 468; a power of attorney from J. L. Cagle, dated October 16, 1876, to H. A. Cagle, authorizing him to convey the interest of J. L. Cagle in certificates Nos. 468, 469, 470, 471, and 480, all issued to Adams, Beatey, and Moulton, and transferred to the said H. A. and J. L. Cagle; a deed dated May 8, 1877, from H. A. and J. L. Cagle to Joseph Jones and W. I. Garshweiler to survey 109, land script 468, survey 111, land script 469, survey 113, land script 470, survey 115, land script 471, and survey 117, land script 480, for $900 cash, all in block 1, Floyd county, Tex.; a deed, dated May 12, 1877, from W. I. Garshweiler, conveying his interest in said surveys 109 and 117 to Joseph Jones. The appellees also introduced proof showing that they were the heirs of Joseph Jones, who died February 23, 1902, at San Antonio, Tex., and of his wife, Annie E. Jones, who died June 19, 1903.
Appellant relies on secondary evidence to prove the execution of a deed, its contents and its loss, made by Joseph Jones on January 14, 1878, and acknowledged by his wife on January 28, 1878, to C. W. Haxton, from the heirs of whom he has a conveyance to said land which was in evidence. He offered the patent, power of attorney, and deeds that had been introduced by the appellees. He also offered a deed from Joseph Jones, dated May 12, 1877, acknowledged before a notary public of Dallas county, Tex., and filed for record in Jack county, Tex., July 20, 1877, conveying his interest to W. I. Garshweiler in said surveys Nos. 111 and 113 for a recited consideration of $400; a deed from Joseph Jones and W. I. Garshweiler, dated May 5, 1877, acknowledged before a notary public of Dallas county, Tex., and recorded in Jack county, Tex., July 6, 1877, conveying said survey 115 to John Weir for a consideration of $200; a deed from Joseph Jones and his wife, dated January 17, 1878, acknowledged before a notary public of Dallas county, Tex., recorded in Jack county, Tex., January 18, 1878, conveying said survey 117 to Y. B. Dean for a consideration of $140.
It was agreed that with the exception of said deed from Jones and his wife to Dean, all other deeds made by Garshweiler and Jones affecting the five above tracts of land were made and recorded in 1877; that the indices to the deed records of Floyd county, including the indices to the transcribed deed records from Jack county, show no other transfers from Joseph Jones and his wife to any land in Floyd county, and that the records of Floyd county show no transfer to Joseph Jones and his wife to any land in Floyd county, except the lands shown in the aforesaid instruments which left undisposed of in January, 1878, as far as the records reveal, survey 109, which is the land in controversy.
Appellant introduced a certified copy of an entry in the notarial record kept by Julius Royer, a notary public of Dallas county, Tex., covering the period from July 28, 1876, to March 31, 1878, which tends to show that Joseph Jones, on January 14, 1878, and Annie E. Jones, on January 28, 1878, both in Dallas county, Tex., acknowledged as grantors an instrument in which C. W. Haxton, of Attica, Ind., was the grantee, relative to land located in Floyd county, Tex., the original grantee being given as H. A. and J. L. King. *Page 941
The record tends to show that up to 1879 no land in Floyd county, and none in the state of Texas, had been patented to H. A. and J. L. King, and that there had been no survey in which they were named as original grantees; that there had been no one who was patentee or original grantee in any grant from the state with the initials of H. A. and J. L. except H. A. and J. L. Cagle, and that they were patentees to land in Floyd county, Tex.
The record tends to show that Dr. Jones moved from Indiana to Dallas, Tex., about 1875; that C. W. Haxton, who had theretofore worked for Dr. Jones as stableman in Attica, Ind., was employed to bring to Texas some horses and personal property for Dr. Jones; that after arriving in Texas he worked for Dr. Jones in Dallas a year or two, then returned to Attica, Ind., his old home; that after he returned he claimed to own a section of land in Texas, which he asserted he had bought from and which had been deeded to him by Dr. Jones; that he continuously, from time to time, and to different people, up to his death on November 24, 1902, claimed to own a section of land in Floyd county, Tex.; that he exhibited on different occasions and to different people an instrument which was in the ordinary form of a deed, and which he stated was the deed given to him by Dr. Jones for the Texas lands; that he said the land was of but little value, but he expected it to be worth more later; that he tried to trade the land for other property, and offered to give his daughter and son-in-law a home on the land, if they, with their family, would move to Texas and occupy it.
Louis A. Layman, the surviving husband of the deceased daughter of C. W. Haxton, testified to hearing his father-in-law claim the land in Texas and announce that it was deeded to him by Dr. Jones, and that he and his wife and C. W. Haxton had discussed the land and the deed many times, and that C. W. Haxton claimed to own but one tract of land in Floyd county, Tex.; that he, witness, had read the deed on two different occasions, and that it was from Joseph Jones and his wife to C. W. Haxton for a section of land in Floyd county, Tex.
Mrs. Keller, the granddaughter of C. W. Haxton, testified that in 1901 her grandfather showed her an old deed, worn and frayed in the creases, all of which she could not read as it had faded out in the folds, but that she could see that it was a deed, could read the name of Jones and "Dallas, Tex.," and it read that the land was deeded to C. W. Haxton.
The testimony of a number of witnesses who were closely associated with Dr. Jones during the 20 years he resided in San Antonio immediately preceding his death, February 23, 1902, tends to show that he never asserted any claim to any land in west Texas; in the will executed by Dr. Jones on January 28, 1902, no mention is made of the land, nor is any reference to it made in the inventory and appraisement in the probate of Dr. Jones' will; there was nothing found among the papers of Dr. Jones with reference to the land; no taxes were ever paid on it by him or his heirs or executor, and neither his heirs nor his executor ever made any claim thereto until just prior to the institution of this suit when it was called to their attention in an advertisement by a stranger.
On the loss and destruction of the deed, the testimony by appellant tends to show that January 27, 1902, C. W. Haxton was living up stairs in a room in a building adjoining the post office in Williamport, Ind., at which time a fire occurred, destroying the building and room in which Haxton lived and slept; that he had his papers and personal belongings in the room; that he was present at the fire and was rescued from the building nearly exhausted and stated immediately thereafter that all of his personal effects were destroyed.
The appellee introduced the testimony of Jerry Haxton, the half-brother of C. W. Haxton, who stated that three or four years before C. W. Haxton died he saw the deed to the Texas property at the place where he and his brother were living, on which occasion C. W. Haxton had a number of papers in his hand and said he was going to burn all the papers that he had; that three or four days thereafter witness asked what had been done with the deed to the Texas property, and C. W. Haxton answered, "Ashes tell no story."
The record discloses that sufficient search to find the deed, if it ever existed, had been made in the proper and probable places to admit secondary evidence of its loss, provided its loss or destruction was unintentional or accidental and not prompted by any fraudulent intent or design.
Floyd county was unorganized until 1890 and was very sparsely settled at that time. Neither C. W. Haxton nor his heirs ever occupied or paid taxes on the land.
We deem this a sufficient statement for a consideration of the questions presented and to disclose the additional testimony offered on the last trial.
At the conclusion of the testimony, the jury, in response to a peremptory instruction by the court, returned a verdict that the appellees recover title and possession to the land in controversy, and judgment was entered accordingly.
Appellant, by proper assignments, challenges as error the action of the trial court in directing a verdict against him because the testimony tended to prove the execution, contents, and destruction of the deed, all of *Page 942 which were material issues of fact, which should have been submitted to the jury.
Appellees contend that the action of the trial court should be sustained, first, because the question as to the innocent or fraudulent destruction of the alleged deed was addressed to the sound discretion of the judge trying the case, and the evidence discloses that C. W. Haxton, the grantee in the alleged deed claimed to have been lost, voluntarily destroyed said deed, and the testimony is insufficient to overcome the presumption of the fraudulent design arising from such destruction; and second, for the reason that, if all fraudulent design in the destruction of the said deed had been rebutted, the testimony was not sufficient to prove the execution and contents of the deed relied on by the appellant.
It is within the sound discretion of the court to determine the facts upon which depends the admissibility of certain character of evidence. To illustrate: Whether the testimony shows that a confession was voluntarily made, a conspiracy sufficiently revealed to introduce statements of an alleged conspirator, whether a witness has qualified as an expert, and whether the loss or destruction of a written instrument has been sufficiently shown to admit secondary evidence of its contents, but as to whether the testimony is true and the witnesses entitled to credit, and whether the evidence establishes the facts, are questions of fact to be determined by the jury. Avery v. Stewart, 134 N.C. 287, 46 S.E. 519; St. Croix Co. v. Seacoast Canning Co., 114 Me. 521, 96 A. 1059.
"It is always a question addressed to the discretion of the court, to determine whether the basis has been laid by proving the loss or destruction of a record, to let in proof that such record once did exist. This discretion is not an arbitrary, capricious discretion, but must be a reasonable conclusion from the evidence." Mays v. Moore, 13 Tex. 85.
The action of a trial court in determining from the testimony whether such evidence is admissible is not conclusive upon a litigant, but is subject to review by the appellate court. Dyer v. McWhirter,51 Tex. Civ. App. 200, 111 S.W. 1053; Freeman v. Rice Institute et al.,60 Tex. Civ. App. 191, 128 S.W. 629; Taliaferro et al. v. Rice,47 Tex. Civ. App. 3, 103 S.W. 464. This rule is manifestly applicable to the discretion exercised by the trial court in determining whether or not a deed was destroyed or lost accidentally or innocently, or destroyed with a fraudulent intent or design.
The testimony offered by appellees discloses that the witness Jerry Haxton testified that C. W. Haxton told him in 1898 or 1899, or three or four years before his death on November 24, 1902, that he was going to burn his papers, and that three or four days after this statement was made, when asked about the Texas deed, C. W. Haxton replied, "Ashes tell no story." Mrs. Keller, the granddaughter of C. W. Haxton, testified that about Decoration Day, 1901, C. W. Haxton showed her what he claimed to be the deed to his Texas land; that she examined and read parts of the instrument which deeded land in Texas to C. W. Haxton. If this testimony is true, and for the purpose of passing on the peremptory instruction only appellant's evidence is considered (First Nat. Bank v. Rush [Tex.Com.App.] 210 S.W. 520), the eccentric C. W. Haxton had in his possession the deed in controversy quite a while after, according to Jerry Haxton, he stated, "Ashes tell no story." This testimony was not before the court when the case was decided 270 S.W. 544, and we think, presents an issue of fact as to the innocent or fraudulent destruction of the alleged deed, which appellant was entitled to have submitted to the jury. Choate v. Ry. Co., 91 Tex. 406, 44 S.W. 69.
If we are correct in the above conclusion, without intending to intimate how the issue would have been determined, let us assume that the jury would have found that the deed was lost or destroyed without fraudulent intent or design for the purpose of passing on the sufficiency of the secondary evidence offered to present a jury question as to the execution and contents of the alleged deed.
In the opinion by Judge Boyce on a former appeal, in which Chief Justice Huff concurs, Hutchison v. Massie (Tex.Civ.App.) 226 S.W. 701, it is held that the evidence as disclosed by the record on that appeal was sufficient to warrant the finding of the existence of a deed by Dr. Jones conveying to C. W. Haxton a section of land in Floyd county, and the destruction thereof, and that the testimony led to the conclusion that the conveyance probably did name section 109 as the property therein conveyed, but that this was not sufficient to meet the requirement of proof in this kind of a case, because the degree of certainty required by the rule of clear, satisfactory and convincing evidence had not been met. This rule on the quantum of proof can only require such proof as would carry conviction to an unbiased and unprejudiced mind, and whether or not the evidence was clear, satisfactory and convincing is a question for the jury.
Secondary evidence of the lost deed, upon which appellant relies, was admissible as to its contents without proving the execution thereof, if it was an ancient instrument, because the rule admitting an ancient instrument without proof of its execution applies to the admission of secondary evidence to prove the contents of such *Page 943 instrument. Ammons v. Dwyer, 78 Tex. 640, 15 S.W. 1049; Walker v. Peterson (Tex.Civ.App.) 33 S.W. 269; Smith v. Cavitt,20 Tex. Civ. App. 558, 50 S.W. 167.
The alleged lost deed was executed in the month of January, 1878. This suit was filed January 3, 1910; hence, the deed had been in existence more than 30 years not only when the evidence was offered, but at the time the suit was instituted, and was therefore of an ancient instrument, and the failure of the witnesses to state that the deed was properly signed and acknowledged would not preclude secondary evidence of the contents of the instrument.
"It is now firmly established by the decisions of the Supreme Court, as well as by all of the appellate courts of this state, that the execution and delivery of a deed to land may be proved by circumstances, and when the land involved is wild or vacant land and located in a community or vicinity where much of the surrounding land is of the same character, it is not necessary, in order to establish the execution of the claimed deed by circumstances, that there should have been actual possession of the land by the claimant under the deed sought to be presumed. In such a case, the rule, stated substantially, is that, if from all the facts and circumstances introduced in evidence it is more reasonably probable that the claimed deed was executed than that it was not, then a jury trying the case or a judge without the jury would be warranted in presuming in favor of the claimed deed and find accordingly. It is unnecessary to mention further authorities in support of this conclusion than the cases of Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S.W. 1033, and Magee v. Paul, 110 Tex. 470, 221 S.W. 256. The opinion in the Brewer v. Cochran Case was by the Galveston Court of Civil Appeals, speaking through Associate Justice Reese, and the conclusion and reason for the conclusion on that point in that case was made so clear that the Supreme Court, in Magee v. Paul, speaking through Associate Justice Greenwood, stated, substantially, that nothing could be said that would add anything to the strength of the reasoning of Judge Reese in discussing the rule in the Brewer-Cochran Case. See, however, Frugia v. Trueheart,48 Tex. Civ. App. 513, 106 S.W. 738; Bounds v. Little, 75 Tex. 321,12 S.W. 1109; Jones v. Reus, 5 Tex. Civ. App. 628, 24 S.W. 674; Herndon v. Burnett, 21 Tex. Civ. App. 25, 50 S.W. 581; Hutchison v. Massie (Tex.Civ.App.) 226 S.W. 695; Le Blanc v. Jackson (Tex.Civ.App.)161 S.W. 64; Houston Oil Co. v. Drumwright (Tex.Civ.App.) 162 S.W. 1014; Dunn v. Epperson (Tex.Civ.App.) 175 S.W. 841." Humphreys v. Green (Tex.Civ.App.) 234 S.W. 562.
The identity of land claimed under a deed may, like any other fact, be shown by circumstantial evidence. Ludtke v. Mackey et al. (Tex.Civ.App.)251 S.W. 606; Id. (Tex.Com.App.) 261 S.W. 140. See, also, Snyder et al. v. Ivers et al., 61 Tex. 400; Simpson Bank et al. v. Smith,52 Tex. Civ. App. 349, 114 S.W. 445; Texas Land Cattle Co. v. Walker et al., 47 Tex. Civ. App. 543, 105 S.W. 545.
A conveyance of land may be proved by circumstantial evidence. Blake v. Marshall et al. (Tex.Civ.App.) 279 S.W. 612.
In Choate v. S. A. A. P. Ry. Co., 90 Tex. 82, 36 S.W. 247,37 S.W. 319, the Supreme Court holds that before the trial court is authorized to direct a verdict "the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it."
In Choate v. Railway Co., 91 Tex. 401, 44 S.W. 69, the Supreme Court quotes with approval 1 Greenleaf on Evidence, par. 491, which is:
"Whether there be any evidence or not is a question for the judge; whether it is sufficient evidence is a question for the jury."
In determining the action of the trial court in directing a verdict, only the evidence of the party against whom the verdict is directed is to be considered (First National Bank v. Rush [Tex.Com.App.] 210 S.W. 521), and such testimony is to be taken as true (Grubb v. Ry. Co. [Tex. Civ. App.] 153 S.W. 694).
In Parks et al. v. Caudle et al., 58 Tex. 216, secondary evidence of the contents of a lost deed was relied on, and the witnesses, as the report of the case discloses, described the land involved as William A. Parks' headright certificate, located in Grayson county, Tex. The court says:
"We are also of opinion that under the circumstances, the evidence as to the contents of the deed was not inadmissible because it was not sufficiently specific. If such a deed was in fact ever made and was destroyed by fire, no copy having been preserved, it would be rare indeed that witnesses, after 20 years had passed, would be able to testify definitely to more than its substance. In the unreported case of Reed v. Allen, appealed from Houston county, and decided at Galveston in 1880 or 1881, evidence less specific and certain as to the formalities of the deed and the property conveyed than that adduced in the present case was held sufficient to establish a conveyance made many years before the trial."
In view of the principles thus announced, did the circumstances offered in evidence by appellant disclose a conveyance of section 109, the land in controversy, from Dr. Jones and his wife to C. W. Haxton, with such a degree of certainty as to present an issue of fact to be determined by the jury? The testimony shows that on May 8, 1877, H. *Page 944 A. and J. L. Cagle conveyed to Joseph Jones and W. I. Garshweiler surveys 109, 111, 113, 115, and 117, in block 1, Floyd county, Tex.; that on May 12, 1877, W. I. Garshweiler conveyed his interest in said surveys 109 and 117 to Joseph Jones, and on the same day Jones conveyed to Garshweiler his interest in said surveys 111 and 113; that on May 5, 1877, Jones and Garshweiler conveyed said survey 115 to John Weir, and on January 17, 1878, Joseph Jones and his wife conveyed said survey 117 to Y. B. Dean. All these instruments were acknowledged in Dallas county, Tex., where Dr. Jones and his wife lived at that time, and were recorded in Jack county, Tex., to which Floyd county was attached. These transactions, so far as the record discloses, include all the land in which Jones ever acquired an interest in Floyd county, and include the disposition of all the land acquired in said county by him, except survey 109 in controversy. The testimony tends to show that Dr. Jones and his wife, in January, 1878, acknowledged as grantors an instrument relating to lands in Floyd county, Tex., in which C. W. Haxton was designated as grantee; that the notary public before whom this instrument was acknowledged designated the original grantee to the land to which the instrument related as H. A. and J. L. King; that no survey in Floyd county, nor in Texas, up to 1879, was found in which H. A. and J. L. King were patentees or original grantees, but that H. A. and J. L. Cagle, from whom the five tracts of land above described were obtained by Garshweiler and Jones, were named as patentees and assignees to said five sections of land.
C. W. Haxton was an employee of Dr. Jones in Indiana, came to Texas in his service, and worked for him at Dallas, Tex. Shortly after his return to his home in Attica, Ind., C. W. Haxton asserted that Dr. Jones had conveyed to him a section of land in Floyd county, Tex.; exhibited what he claimed to be a deed to said land; tried to trade the land for other property; offered to give his son-in-law and daughter a home on the land if they would move to Texas and occupy it; claimed but one tract of land in Floyd county; exhibited the instrument under which he claimed to various parties; that the instrument appeared to be in the ordinary form of a deed; that it purported to convey a section of land in Floyd county, Tex., from Dr. Jones and his wife to C. W. Haxton; that on January 28, 1878, Dr. Jones and his wife owned no land in Floyd county except section 109 in controversy; that for 20 years preceding his death, Dr. Jones asserted no interest in the land to his children or to his associates and paid no taxes thereon; that nothing was found among his papers or those of his wife, who survived him, referring to said section of land; no mention of it was made in his will or in the inventory and appraisement of his property in the probate of his will, and no claim asserted by his heirs from the time of his death in 1902 until immediately preceding the filing of this suit in 1910.
The presumption is that Dr. Jones and his wife would not have executed an instrument relating to land in Floyd county, Tex., which they did not own. At the time the instrument is claimed to have been made, they owned in Floyd county, Tex., no other land except section 109 in controversy. After the date of the execution of the alleged lost deed, Dr. Jones at no time during his life claimed to own land in Floyd county; he paid no taxes thereon; nothing was found among his papers pertaining to said tract of land. He lived approximately 22 years. The presumption is that a party owning land will in some way assert his right, claim, or title thereto. These circumstances, we think, presented an issue of fact to be determined by the jury.
Appellant assigns as error the action of the trial court in excluding a tax deed made to him by the tax collector of Floyd county, Tex., in 1892, and the evidence offered by him to show the regularity and legality of such sale, for the reason that his said deed was admissible as an ancient instrument, having been in existence more than 30 years before offered in evidence.
"It has been invariably exacted of one asserting title under a summary tax sale to show that every legal requirement pertaining to the sale has been strictly and scrupulously complied with. Not only must everything prescribed by law be done in advance and at the time of the exercise of the power to sell, but it must be done exactly as prescribed." Brown v. Bonougli, 111 Tex. 275, 232 S.W. 490.
See, also, Land v. Banks (Tex.Com.App.) 254 S.W. 786, 30 A.L.R. 1, and notes.
Article 7277, R.C.S. 1925, provides:
"Prior to the sale of any real property for taxes in any county in this state, the tax collector shall advertise the same by posting a list of the names of the delinquents for thirty days as follows: One copy at the courthouse door of the county, and a copy at two other public places in the county where the lands or lots are situated."
Appellant's assignment is presented in a bill of exceptions covering 30 pages in the transcript, and, without undertaking to determine whether he shows an exact compliance with the law in other particulars, we deem it sufficient to say that he offered no testimony tending to show that the tax collector complied with article 7277 by posting at two other public places in the county, for 30 days before the sale, the delinquent list. *Page 945 The tax deed, if admissible, as an ancient instrument, does not prove the recitations contained therein; therefore, the court did not commit error in excluding the tax deed and the testimony offered of the regularity of the sale.
Appellant assigns as error the action of the court in admitting the testimony of Jerry Haxton to the effect that his brother, C. W. Haxton, told him, when asked what had become of the deed to the Texas land, that "Ashes tell no story," for the reason that said testimony was hearsay. This assignment is overruled.
For the error of the court in peremptorily instructing the jury to return a verdict in favor of appellees, the judgment is reversed and the cause remanded.
RANDOLPH, J., disqualified.