Cooke v. Avery,
147 U.S. 375 (1893)

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U.S. Supreme Court

Cooke v. Avery, 147 U.S. 375 (1893)

Cooke v. Avery

No. 72

Submitted December 5, 1892

Decided January 23, 1893

147 U.S. 375


In view of the requirements of Rev.Stat. § 903, respecting the authentication of bills of exceptions, it will be assumed, where a bill is certified by a district judge holding circuit court, that the circuit justice and circuit judge were not present at the trial, unless the record clearly and affirmatively shows the contrary.

When it appears that some title, right, privilege or immunity, on which the recovery depends will be defeated by one construction of the Constitution or a law of the United States or sustained by the opposite construction, the case is one arising under the Constitution or laws of the United States.

When a party, on the first trial of a cause in a circuit court, sets up such a right as the ground of federal jurisdiction and the jurisdiction is sustained, he cannot be permitted, on the second trial, to oust the jurisdiction by contending that no such right is in controversy.

Where a plaintiff's title rests upon the validity of a lien claimed to have been acquired under a judgment of a circuit court of the United States, the disposition of the issue depends upon the laws of the United States and the rules of its courts, and a federal court has jurisdiction.

An index to an abstract of judgments in Texas, made under its laws for acquiring judgment liens, is sufficient which gives the defendants' name or names correctly and the names of the plaintiffs by a partnership title.

In Texas, in trespass to try title, the defendant cannot question the validity

Page 147 U. S. 376

of his grantor's title at the time of the conveyance to him when the plaintiff claims under the same grantor, unless he claims under a paramount title.

If the defendant in such an action pleads his title specially, he waives the general issue, and is confined to the defense specially pleaded.

The defendant in such an action, not having been in possession of the land in dispute for twelve months next before the commencement of the action under written evidence of title, offered to show that immediately after concluding his bargain for the property, he entered into possession and commenced making improvements, and erected improvements of great valve on the property before he knew of the plaintiff's lien. This was done in order to enable him to get the benefit of the provisions in the Texas statutes relating to improvements. Held, that the offer was too vague.

A married woman was codefendant in an action of trespass to try title in Texas. Her interest was a community interest in the property by virtue of a conveyance to her husband. Held that a personal judgment in damages for use and occupation, and for costs, could not be rendered against her.

This was an action of trespass to try title to a tract of land in Hunt County, Texas, brought by W. W. Avery, December 24, 1886, against J. H. Cooke, his wife, M. E. Cooke, and the Scottish-American Mortgage Company in the Circuit Court of the United States for the Northern District of Texas, the plaintiff alleging that he was a citizen of the State of North Carolina, that the defendants Cooke were citizens of the State of Texas, and that the mortgage company was an alien corporation, and a subject of Great Britain.

The petition averred that on the 25th of November, 1886, plaintiff was lawfully seised and entitled to the possession of the land in question, located in Hunt County, Texas, in the Northern District of said state, and entitled to hold the same in fee simple, and that defendants Cooke unlawfully dispossessed him thereof, and still unlawfully withhold the same.

The mortgage company demurred, and also pleaded that on January 1, 1886, the defendants Cooke, who were at that time in possession of the land and seised of good title in fee simple, and had the right to convey the same, executed a deed of trust thereon to one Simpson, as trustee, to secure a loan of money made by the company to the Cookes. The other defendants answered to the merits, and subsequently, on February

Page 147 U. S. 377

13, 1888, defendant J. H. Cooke withdrew his answer, and filed a plea to the jurisdiction of the court to the effect that the land had been conveyed to plaintiff by citizens of Texas on November 25, 1886, without consideration, and for the purpose of conferring jurisdiction, and on the same day, not waiving his plea to the jurisdiction, he answered (1) not guilty; (2) that he purchased the land in controversy from J. H. Payne, under whom the plaintiff claimed,

"in actual ignorance of any lien upon said land, and in the belief that said tract of land was the homestead of said J. H. Payne, and that no creditor of said Payne could acquire a judgment lien thereon. That this defendant, for more than twelve months before the commencement of this suit, had actual adverse possession of said land in controversy, and that during said period defendant made upon said land permanent and valuable improvements, in good faith, as follows: [The alleged improvements were enumerated, and the total value stated to be $11,900.] That said tract of land, without said improvements, is of the value of $2,000, and by said improvements the same is enhanced in value by the cost or value, aforesaid, of said improvements. Defendant prays for the value of said improvements, if plaintiff recovers said land,"


On February 11, 1889, plaintiff filed his amended original petition, which further alleged that plaintiff and the defendants derived title from one J. H. Payne as a common source; that defendants deraigned title through a certain deed executed by Payne and his wife January 2, 1886, while the plaintiff claimed title under an execution sale upon a judgment recovered against Payne January 17, 1882, in case No. 198, in the Circuit Court of the United States for the Northern District of Texas at Dallas, in favor of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, partners under the firm name of Deere, Mansur & Company for the sum of $717.93 and costs of suit, all the proceedings upon and in reference to which were fully set forth. Plaintiff further alleged that by reason of certain laws of the United States and rules of the Circuit Court of the United States for the Northern District of Texas, which were specifically referred

Page 147 U. S. 378

to, the judgment was a lien upon the property from the date of its rendition, or became such on the date the abstract thereof was recorded and indexed in Hunt County, February 9, 1882, as set out, and continued to be a lien up to the date of the sale by the marshal, by reason whereof plaintiff had a superior title to the property, but that defendants denied that the judgment was ever a valid lien on the property under said laws and rules, and this constituted the controlling question in the case, upon the correct decision of which plaintiff's title depended. Plaintiff therefore averred that this suit arose under the laws of the United States and the rules of the circuit court, and that the circuit at the institution of the suit had, and still has, jurisdiction thereof without regard to the citizenship of the parties thereto.

On June 8, 1889, the defendants Cooke demurred to that part of the amended original petition treating of jurisdiction, and further pleaded

"that if they are not the owners of the land in controversy, the title thereto is outstanding in one Y. D. Harrington, to whom it was conveyed by said J. H. Payne before the lien under which plaintiff claims attached, and defendants deny all the averments of said petition."

On the same day, plaintiff demurred and excepted generally and specially to defendants' plea to the jurisdiction, and denied its allegations, and also replied to defendant J. H. Cooke's original answer by general and special demurrers or exceptions, and a general denial.

The cause came on for trial June 8, 1889, and, the court having heard and disposed of the several demurrers and exceptions, the trial was proceeded with.

The plaintiff introduced in evidence a judgment of the circuit court rendered January 17, 1882, in favor of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, against J. H. Payne, in cause No. 198, for the sum of $717.93, of which the sum of $682.13 was directed to draw interest at the rate of ten percent per annum, and the sum of $35.80 at the rate of eight percent per annum, and for costs, and also a general index of all

Page 147 U. S. 379

judgments rendered in the court, which showed, under the proper letter, that the judgment in favor of Deere, Mansur & Company against J. H. Payne was entered in Minute Book No. 1, p. 534; also an execution issued on the judgment March 3, 1882, returned, "No property found," and an execution issued August 11, 1886, under which the land in controversy was levied on by the marshal, August 12, and sold by him September 7, 1886, to Charles C. Cobb and John M. Avery; also the marshal's deed to said Cobb and Avery, made pursuant to the levy and sale and dated September 7, 1886. Plaintiff also introduced the papers in case No. 198, including the original petition, which petition was endorsed: "In circuit court of United States. No. 198. Deere, Mansur & Company vs. J. H. Payne," which endorsement was also on all the other papers in the cause, and the citation which was duly served on Payne, notifying him to answer the suit in case

"No. 198, of Deere, Mansur & Company, a firm composed of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, against J. H. Payne, defendant."

The petition showed that the suit was brought on a promissory note which was attached as an exhibit, and was dated April 16, 1880, executed by J. H. Payne, and payable to the order of Deere, Mansur & Company Plaintiff further offered in evidence a certified copy of an abstract of the judgment in case No. 198, and a certified copy of the index of the abstract from the records of Hunt County. The certificate of the clerk of the county court of that county stated that said certified copies were true copies of the abstract recorded in the Judgment Record Book No. 1, p. 47, of Hunt County, and of the index, both direct and reverse, referring to said page 47 of said Judgment Record Book, as appeared from the index in his office. The certified copy of the abstract was as follows:

"Circuit court of the United States for the"

"Northern District of Texas at Dallas"

"I, A. J. Houston, Clerk of the Circuit Court of the United States for the Northern District of Texas at Dallas, do hereby

Page 147 U. S. 380

certify that in said court, on Tuesday, January 17th, 1882, the plaintiffs recovered a judgment against the defendant for the sum of $717.93, of which the sum of $682.13 shall draw interest from said date at ten percent per annum, and the balance, $35.80, shall draw interest at eight percent per annum, together with the costs by plaintiffs incurred, all of which said judgment and costs is yet due and unpaid by the defendant in case No. 198, and styled Deere, Mansur & Company, Plaintiffs vs. J. H. Payne, Defendant; all of which appears from the records of said court now in my office."

"In testimony whereof, I hereunto set my hand and affix the seal of said court at Dallas, Texas, this 6th day of February, A.D. 1882, and of the independence of the United States the l06th year."

"[Seal of U.S. circuit court at Dallas, Tex.]"

"A. J. Houston"

"Clerk of said Court"

"Filed for record Feb'y 9th, 1882 at 10 o'clock A.M. Recorded same day and hour."

"A. Cameron"

"Co. Clerk, Hunt Co., Texas"

The certified copy of the direct and reverse index was as follows:

"Direct Index to Judgment Record, Hunt County, Texas"

"Plaintiffs' name: Deere, Mansur & Co."

"Defendant's name: J. H. Payne"

"Page of judgment record: 47."

"Reverse Index to Judgment Record, Hunt County, Texas"

"Defendant's name: J. H. Payne"

"Plaintiff's name: Deere, Mansur & Co."

"Page of judgment record: 47"

The defendants objected to the introduction of the abstract because it did not correctly give the names of the plaintiffs in the judgment, and did not show the amount still due thereon,

Page 147 U. S. 381

as required by law, and to the index because it did not give plaintiffs' names. But the objection was overruled and the abstract and index admitted, and defendants Cooke excepted.

Plaintiff then introduced a deed from Cobb and Avery to plaintiff dated November 25, 1886, and also, "for the purpose of proving a common source of title, and for no other purpose," a certified copy of the deed from Payne and wife to defendant J. H. Cooke, dated January 2, 1886. It further appeared that the mortgage company claimed under a deed of trust of the same date, executed by Payne and wife to Simpson, as trustee, to secure a loan of money, and that Payne derived title through a deed from Crabtree and wife to him dated August 16, 1867, and duly acknowledged and recorded in April, 1868.

Two rules of the Circuit Court for the Northern District of Texas were then put in, to-wit, Rule No. 1, adopted by that court at Dallas, April 2, 1880, as follows, viz.:

"Rule 1. The modes of proceedings prescribed by the laws of Texas, when they do not conflict with the laws of the United States or a rule of the Supreme Court of the United States or of this Court, are adopted."

And also Rule No. 1, adopted by the court at Dallas July 26, 1881, which is as follows, viz.:

"Rule 1. All laws and rules of procedure and practice prescribed by the legislature of the State of Texas, as they now exist or as they may be changed and amended from time to time, when the same do not conflict with the law of the United States or a rule of the Supreme Court of the United States or of this Court, are hereby adopted as the rule of practice in this Court, and all suits by attachments, sequestration, or otherwise brought in this court shall conform to the laws of the State of Texas in force at the time such suit is brought, provided the same does not conflict with a law of the United States or a rule of the Supreme Court of the United States or of this Court."

It was agreed that Y. D. Harrington, assignee, fully administered the trust created by Payne's deed of assignment, hereinafter mentioned, prior to July 1, 1881, and made final report of his proceedings thereunder to the proper court, and was discharged by said court prior to July 1, 1881, and ever since

Page 147 U. S. 382

that date had ceased to act as such trustee. It was also agreed that ever since the date of the assignment, Payne and Cooke, claiming under Payne, had consecutively held peaceable and adverse possession of the land in controversy in this suit, cultivating, using, or enjoying the same and paying taxes thereon, and claiming under a deed or deeds duly registered, the deed to Payne antedating the deed of assignment, and that to Cooke, in evidence. It was further agreed that the assignee, Y. D. Harrington, never made any claim of title to the land by virtue of the deed of assignment or otherwise.

Plaintiff having closed, defendants Cooke moved that the cause be dismissed for want of jurisdiction. It was admitted that jurisdiction could not be maintained on the ground of the citizenship of the parties, and that, upon a former trial of the cause, defendants' counsel contended that, by a proper construction of section 916 of the Revised Statutes and the rules of the circuit court, the laws of Texas, as they existed in 1873, governed the lien of the judgment, and that the lien was invalid thereunder because executions had not been issued on such judgment each year since its rendition, and that this was defendants' only contention on that trial in regard to the invalidity of said lien, while it was, on the other hand, insisted by plaintiff that the judgment lien was governed by the statute of Texas of 1879, under section 916 and the rules. The motion to dismiss was overruled, and the defendants Cooke excepted.

Thereupon defendants Cooke offered in evidence a general deed of assignment, under the law of Texas in that behalf, for the benefit of his creditors from Payne to Harrington dated October 16, 1880, which purported to convey to Harrington, for the benefit of such of Payne's creditors only as would accept its provisions, all Payne's property, real and personal, not exempt, but did not mention the land in controversy specifically, either in its body or in the inventory and exhibits attached. It provided for the disposition of the assigned property, and the rendition of the surplus to Payne, after paying the expenses and the creditors in full. The admission

Page 147 U. S. 383

of this assignment was objected to by plaintiff, the objection sustained, and defendants excepted.

Defendants Cooke offered in evidence the original deed made by Payne and wife to Cooke, dated January 2, 1886, which was objected to on the ground that defendants, having specially pleaded an outstanding title as a defense, could not prove title in themselves, which objection was sustained by the court, the deed excluded, and defendants excepted. Defendants then offered the original deed from Payne to Cooke under the plea that they had placed valuable and permanent improvements on the land, and had had adverse possession for more than twelve months before the commencement of the suit, and in that connection offered to prove that in October, 1885, defendant J. H. Cooke had by parol agreed with Payne upon terms of purchase, but no consideration was paid Payne until the date of the deed, and that immediately upon making the agreement, Payne delivered to Cooke exclusive possession of the premises, and Cooke entered upon such possession, holding adversely and in good faith, and commenced the erection of improvements thereon which enhanced the value of the land in controversy. The evidence was excluded, and exception taken.

Defendants Cooke then offered to prove that from January 1, 1882, until the sale by him, Payne was the head of a family consisting of wife and children, and that the land was claimed and used by him as his homestead. The court sustained objection thereto, and defendants excepted.

Upon the conclusion of the evidence, the court instructed the jury to return a verdict for the plaintiff for the land, and for the value of the rents and profits thereof from November 25, 1886, to the date of the trial, to which instruction defendants excepted. Thereupon a verdict for plaintiff was returned, with damages, and judgment entered by the court for the recovery from the defendants of the title and possession of the premises in question, together with the fixtures and permanent improvements thereon and appurtenant thereto, and that plaintiff have a writ of possession, and it was further adjudged that plaintiff recover of defendants

Page 147 U. S. 384

Cooke the sum found by the jury as damages, together with costs.

The mortgage company declining to join in the prosecution of the writ of error, an order of severance was entered, and this writ of error brought accordingly.

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