14 S.W. 1058 (Tex. 1891), McNeil v. O'Connor

Citation:14 S.W. 1058, 79 Tex. 227
Opinion Judge:STAYTON, C.J.
Party Name:McNEIL et al. v. O'CONNOR et al.
Attorney:A. B. Purcolas and H. E. Vernor, for appellants. [79 Tex. 228] Glass, Callender & Proctor, for appellees.
Case Date:January 13, 1891
Court:Supreme Court of Texas
 
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Page 1058

14 S.W. 1058 (Tex. 1891)

79 Tex. 227

McNEIL et al.

v.

O'CONNOR et al.

Supreme Court of Texas

January 13, 1891

Appeal from district court, Refugio county.

A. B. Purcolas and H. E. Vernor, for appellants.

[79 Tex. 228] Glass, Callender & Proctor, for appellees.

STAYTON, C.J.

The land in controversy was granted by virtue of a first-class headright certificate issued to Daniel McNeil by the board of land commissioners for Jasper county in December, 1838. The original certificate was issued upon application of Martin Palmer, as administrator. Appellants, who are shown to be entitled as descendants of one Daniel [79 Tex. 229] McNeil, prosecute this action to recover the land, and the proper determination of the case depends on the question whether the ancestor of the plaintiffs is shown to be the person to whom the certificate was issued by virtue of which the land was granted. The court below found that this identity was not shown. The evidence shows beyond controversy that the Daniel McNeil who was the ancestor of plaintiff was one of Austin's first colonists, and that he applied for and received, as such colonist, a league of land in that colony in August, 1824. The application for the colonist grant was made by Daniel McNeil in person. The fact that he was then recognized as an inhabitant of the colony the grant shows, as does other evidence, and to him in person was juridical possession given. The evidence of a number of persons, formerly slaves belonging to John McNeil, who also lived in Austin's colony, was introduced for the purpose of showing that they knew Daniel McNeil, who lived in that colony; and that, having a general acquaintance throughout much of the then inhabited portion of Texas, they knew of no other Daniel McNeil than the person who was the brother of their master. These witnesses all date their arrival in Texas 'ten years before the battle of San Jacinto,' and one of them stated that Daniel McNeil came to Texas several years after the witness did. Another one stated that he did not remember the date of Daniel McNeil's death, but that he did 'know that on account of hard feelings and crossness between himself and wife, that he left home for east Texas, and died some four or five years after I came to Texas.' Some of those witnesses testify that their master, when he first came to Texas, stopped for a short time in Jasper county, and...

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