Higgins v. S. Texas Development , 21 S.W.2d 540 ( 1929 )

The peremptory instruction given in this cause must be justified, if at all, upon a determination that it conclusively appeared:

(1) That this 91 acres had not been paid for prior to the death of Maria Higgins, and that Pompey Higgins actually owed H. Masterson an unpaid $310 balance on the original B. T. Masterson purchase-money notes therefor on June 7, 1893, when he executed to him the deed thereto so reciting.

(2) That Pompey Higgins did not, on or about 1890, parcel out to his children by Maria, the appellants here, this entire tract, except a small piece he reserved for himself in its southeast corner, which several segregated parts they then respectively took, and continuously until this trial so maintained individual possession of, claiming the same adversely to any right of Pompey Higgins therein.

(3) That the agreed judgment of July 10, 1897, in Pompey Higgins et al. v. H. Masterson and Emily Higgins et al. v. H. Masterson, Nos. 6608, 6609, consolidated, was not settled and satisfied by Pompey Higgins' executing for himself only to H. Masterson, on October 1, 1897, five notes, for $100 each, called vendor's lien notes.

Believing that the evidence heard, together with the admissible testimony tendered, clearly raised an issue for the jury as to each of these features, I dissent from the judgment that affirms a contrary holding.

Appellee mortgage company's claim of title is dependent upon the deed from Pompey Higgins to H. Masterson of June 7, 1893, and upon its recitation that Pompey then owed Masterson $310, "balance on purchase-money notes paid by him for the land," whereas appellants presented direct testimony, particularly from Joseph Higgins, who spoke as having personal knowledge, to the effect, first, not only that this entire indebtedness had been fully paid before the death, about three years before that, of his mother, Maria Higgins, but that it had been so judicially declared, and the lien securing it specifically canceled, by the district court of Brazoria county in the cause of J. V. Hinkle (to whom H. Masterson had transferred the note) v. Pompey Higgins et al., No. 4310, this judgment itself being in evidence, and so showing; second, that this 91 acres had been the homestead of their father and mother, Pompey and Maria Higgins, since their purchase of it from B. T. Masterson in 1881 up to Maria's death, about 1890, and that shortly thereafter, and prior both to Pompey's second marriage and to the date of this deed to Masterson, there being then no debt outstanding against it, Pompey had by agreement with them partitioned it out in severalty among his children, retaining for himself a small piece in the southeast corner; third, that, immediately on being thus allotted their several segregated shares of the tract, these children had taken possession thereof, which they continuously for nearly 40 years thereafter maintained, under the exercise of all the rights of ownership thereof against the world, their father included, and up until the trial of this cause; Joseph Higgins even testifying that he thus brought the character of his claim and possession directly home to H. Masterson during the latter's lifetime:

"I know that Mr. Harry Masterson knew of my claim to this land. I met him right here, and asked him concerning the land and the debt he had against papa; and he said, `I don't want your land.' I told him then of my claim to this land."

Just how it can be held that this testimony did not raise an issue of title by limitation under the 10-year statute to at least an undivided one-half interest in the 91 acres in the heirs of Maria Higgins, even were the claimed partition of it between their father and them conceded to be ineffective for any reason (which is not here done), when this suit to recover it from them was not filed until 1910, does not readily occur; if the purchase money against it was thus paid before their mother's death, about 1890, they inherited her one-half of the land free from any claim the appellee mortgage company held under, and the deed from Pompey Higgins to its predecessor in June of 1893 could at most have conveyed his interest only, if, indeed, any at all; so there would in that event have been no superior title, notes, nor vendor's lien against that half by virtue of "the deed under which Pompey Higgins held possession," as the majority opinion puts it, and the rule there applied would have no application, even if the possession of the whole tract had been "the joint possession of the land by Pompey Higgins and his children," as that opinion further recites. That there was any such joint possession seems to me, however, an assumption directly in the face of the positive testimony of appellants to the contrary, as hereinbefore shown, hence made in violation of the rule that, on an appeal from the giving of a peremptory instruction, the evidence is to be considered most favorably to the party against whom the instruction is operative, disregarding all conflicts and contradictions however strong. Ladies Benev. Soc. of Beaumont v. Magnolia Cemetery Co. (Tex.Civ.App.) 268 S.W. 198; Harpold v. Moss, 101 Tex. 540, 109 S.W. 928.

Such having been the inception of appellants' claim of title, and so regarding the evidence, no break appears in the previously recited continuity of their possession under it, unless the judgment of July 10, 1897, in consolidated causes Nos. 6608, 6609, should be held to constitute one, which may not properly be done, it seems to me, for this reason: This was an agreed judgment, the recovery for money being against Pompey Higgins alone, with a foreclosure of lien only as against appellants, and they offered direct testimony to the effect that it had by agreement been fully paid and satisfied on October 1, 1897, by H. Masterson's having accepted in consideration thereof five notes, of $100 each, from Pompey Higgins, only after they themselves, though importuned to do so by the attorney who had appeared for them in agreeing to such judgment, had refused to sign them on the ground that Masterson held no debt, either against them or their interest in the land. The appellee mortgage company had introduced this judgment in support of its claim of title, and, when appellants in reply offered the stated testimony, the learned trial court excluded it on the mere objection that it was a collateral attack on that judgment of July 10, 1897.

That this was an inadvertence seems to me not debatable, since the proffered proof had for its objective, not any attack upon the integrity of the judgment, but merely to show its subsequent payment, with consequent release of the lien carried, which could be done by parol. Abee v. Ass'n (Tex.Civ.App.) 78 S.W. 973; Burnett v. Atterberry, Administrator, 105 Tex. 119, 145 S.W. 582, 584; Id. (Tex.Civ.App.)130 S.W. 1028; Porter v. Metcalf et al., 84 Tex. 468, 19 S.W. 696.

In the Burnett Case our Supreme Court thus stated the applicable principle: "It is not important to determine whether or not a vendor's lien may be released by verbal agreement; but, if that question is presented by the facts of the case, we agree with the Court of Civil Appeals that such lien may be released by verbal agreement. * * * Without the existence of the debt for the purchase money, the retained estate has no foundation for its existence. The moment the debt is paid, the lien is satisfied, and the retained title or estate is released ipso facto."

The relevancy of this excluded testimony to appellants' case is equally plain. The court's refusal to give the duly requested issues, hereinbefore enumerated, and, instead, peremptorily instructing a verdict against appellants, constituted reversible error, in my opinion, for which the cause should have been remanded for another trial.

I do not desire to be committed to the other holdings of the majority opinion, which lack of time has prevented the discussion of, but do agree that no error was involved in the refusal below of appellants' motion to dismiss the appellees' suit on the claim of its abandonment.