151 S.W. 1178

McDOEL 
v. 
JORDAN et al.

Court of Civil Appeals of Texas. Dallas.
December 7, 1912.

        Appeal from District Court, Freestone County; H. B. Daviss, Judge.
        Action by Ellen Jordan and others against C. J. McDoel. From a judgment for plaintiffs, defendant 
appeals. Affirmed.
        W. R. Boyd, of Teague, for appellant. W. W. Ballew, of Corsicana, and R. L. Williford and T. H. 
Bonner, both of Fairfield, for appellees.

        RASBURY, J.
        
        Upon appropriate pleading in trespass to try title, appellees Ellen Jordan and her husband, Thomas 
A. Jordan, recovered judgment in the trial court against appellant, C. J. McDoel, for the title and 
possession of 480 acres of land out of the Thomas B. Wylie survey in Freestone county, Tex. Appellant 
McDoel recovered judgment against his grantor William H. Leuhrmann, who was a party to the suit, for 
$2,551.20, the amount paid in good faith for the land. There is no appeal by Leuhrmann, nor does he file 
brief or other appearance.
        Appellees in proof of their title introduced in evidence (1) certified copy of patent to the land in 
controversy from the state to A. M. Dunn, assignee of Thomas S. Wylie; (2) application of Thomas A. 
Jordan and E. C. Jordan (appellees) to the chief justice of Navarro county to probate the will of Alexander 
M. Dunn, alleging his death in 1863, and that he left a will with the county clerk of Navarro county; (3) 
the will of A. M. Dunn by which he devised all his estate to Miss Ellen Wilder, including "all lands and 
tenements, farms, etc., more fully described in patents, deeds, and bonds, now in my possession * * * 
and lying subject to my order in the General Land Office; (4) proof of the execution of the will made 
before the county court by Hugh Ingram, showing the execution of same by A. M. Dunn on April 3, 1862, 
in the manner and form provided by law; (5) the decree of the county court admitting the will to probate 
and appointing the applicants administrators of the estate with the will annexed, and appointing 
appraisers, etc.; (6) appellee Ellen Jordan, who testified that she was 67 years of age and the wife of 
Thomas A. Jordan, and that her maiden name was Wilder; that she lived from her birth in Alabama until 
17 years of age, when she came to Texas and lived in Freestone county until she reached the age of 20 
years, when she married and went to Henderson county, Tex.; after a residence of about six years in 
Henderson county she removed to Navarro county and resided there about seven years, when she and her 
husband left and have lived at various places since and now reside in Yuma, Ariz.; that she first learned 
that she had an interest in the land in controversy through her counsel by letter; that she claims title to 
the land through the will made by her uncle Alexander M. Dunn, who signed his name to the will as A. M. 
Dunn, and bequeathed her the same; that she has no deed to the land; (7) deposition of


Page 1179

Preston Owen who testified that he is 66 years old and has resided at Kerens, Navarro county, since 1852; 
that he was acquainted with A. M. Dunn, who formerly resided in Navarro county, Tex.; that he knew 
Dunn about 1862 and understood that he died during the war; that he (Dunn) was a grown man when he 
knew him; when asked on cross-examination, "Do you know, as a matter of fact, that A. M. Dunn is 
dead?" the witness answered that the report was that he died during the war; that he knew Miss Ellen 
Wilder, does not know where she lived, (but) she was with A. M. Dunn, and his understanding is she is 
Dunn's niece; that she married T. A. Jordan and several years after the war they lived near Kerens, but 
subsequently moved away. The foregoing is, in substance, all the testimony of the appellees shown by the 
record. The appellant offered, and there was admitted in testimony (1) general warranty deed to the land 
in controversy from R. W. Compton, T. R. Watson, J. B. Watson, and John Riley to Wm. H. Leuhrmann, 
dated November 14, 1904, and filed for record April 12, 1905, and properly recorded, the consideration 
being $1,300; (2) deed from Leuhrmann et ux. to appellant for same land for consideration of $1,920, 
properly acknowledged, filed, and recorded.
        Appellant by his first assignment of error contends that the court erred in overruling his demurrer to 
the sufficiency of the testimony offered by appellees and in refusing to render judgment for appellant. 
Under this assignment, the proposition is asserted that an application for and grant of administration is 
not evidence of death of alleged decedent in a collateral inquiry. In explanation of this proposition, it may 
be said that the assignment points out, in substance, all the evidence offered to prove the death of A. M. 
Dunn, under whose will appellees claim title, which consists in part of the proceedings had in the county 
court, by which the will of A. M. Dunn was admitted to probate. Conceding that the proposition states a 
correct principle of law, and waiving the point that there may be a marked difference in the admissibility 
of proceedings in administration to prove the death of a decedent, and those by which a last will and 
testament are admitted to probate to prove the same fact, it seems clear to us that the proceedings 
complained of were clearly admissible as muniments of appellees' title to the land. Wills, and the 
proceedings of the county court admitting them to probate, form necessary and important links in the 
chain of many land titles, and it cannot be successfully maintained that they are inadmissible for that 
purpose. Whitman v. Haywood, 77 Tex. 558, 14 S. W. 166. The case cited was a suit to establish 
boundary lines, and the plaintiff offered the will of Thomas Baren, through whom he claimed title to the 
land, with the order of the county court admitting the same to probate, which was objected to in the trial 
court and assigned as error in the Supreme Court, which latter tribunal held that all that was necessary to 
make the same admissible for such purpose was to show that the order probating the will was made by a 
court having jurisdiction to do so. These proceedings were also admissible to prove appellees' title, 
because they were facts relevant to the issue to be determined. In no other way could title to the land be 
shown by appellees. Similarly one who seeks to deraign title through sale under execution may and must 
show that a judgment was rendered which authorized the execution under whch he purchased to issue. 
McCamant v. Roberts, 66 Tex. 262, 1 S. W. 260. Hence we conclude that, for the reasons stated, the 
proceedings were clearly admissible, and that the court did not err in that respect.
        But appellant, by sufficient assignment and appropriate proposition, asserts that, since the court 
could not look to the probate proceedings as establishing Dunn's death, the remaining evidence was 
insufficent because it did not show by a preponderance of competent testimony that A. M. Dunn, under 
whose will appellees claim title, was in fact dead. The evidence adduced to establish the death of Dunn 
consisted of the testimony of Preston Owen, who said he knew Dunn in 1862, when he resided in Navarro 
county, and that he understood that he died during the "war," and on cross-examination he said Dunn was 
a grown man when he knew him, and that the "report" was that he died during the "war." This was all the 
testimony adduced upon the trial relative to the death of Dunn, and as a consequence is a preponderance 
of the evidence. Appellant, however, says it is not competent. We do not think we improperly extend the 
rules of evidence and legal construction in concluding that Preston Owen meant the war between the 
states when he speaks of Dunn dying during the "war," especially since he puts his last knowledge of him 
at 1862. Those who participated in that stirring event, as well as those who have come since, or were too 
young to engage in its heroic contests, know that in everyday language it is described as "the war," and 
that common knowledge would lead us to understand that Preston Owen meant the war between the 
states when he adopted the term commonly used to describe same. Then if we can safely assume, as we 
are persuaded we may, that the witness intended to say that he died during that period, does the further 
statement that he "understood" that Dunn died and that the "report" was that he died during that period 
furnish sufficient evidence to support the conclusion of the trial judge that he is dead? "Report," applied to 
the testimony of Preston Owen, means "an account brought back; a tale carried; a story circulated; hence 
rumor or common fame"—


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in short, hearsay. "Understood" means "implied, assumed, or apprehended." In other words, the effect of 
Preston Owen's testimony is that rumor and common fame, or "the account brought back" at that period, 
had it that Dunn died during the war between the states. The right to prove death by hearsay after the 
lapse of such a long period of time is well settled, and citation of authorities is unnecessary. Counsel does 
not deny the rule, but attacks the evidence adduced as not being even hearsay. We have indicated why 
we think the proof as made is sufficient and competent, particularly so when the record fails to show any 
evidence of a contrary nature.
        We think there is no merit in appellant's contention that the evidence is insufficient to support the 
judgment of the court that the A. M. Dunn named in the probate proceedings, and who signed the will, 
was the same A. M. Dunn named in the patent offered in evidence by appellees. The names are identical, 
and, in the absence of any other evidence, that fact is sufficient to support the conclusion of the trial court 
that they are the same person.
        Nor do we think that the fact that the trial court considered the probate proceedings as proof of the 
death of A. M. Dunn material, if there can be found in the record sufficient other facts to sustain his 
conclusions, and we have indicated at another place in this opinion that the evidence of Preston Owen 
would alone be sufficient to support such a finding.
        Finding no reversible error in the record, the judgment of the trial court is affirmed.