Thorn's Heirs v. Frazer's Heirs

Decision Date30 October 1883
Docket NumberCase No. 1434.
Citation60 Tex. 259
PartiesTHORN'S HEIRS v. FRAZER'S HEIRS.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

APPEAL from Grayson. Tried below before the Hon. Joseph Bledsoe.

Trespass to try title against appellants and Amanda Gearheart to recover the land described in the petition. Appellants and Amanda Gearheart answered by general demurrer and plea of not guilty. Appellees claimed the land by virtue of a patent to the heirs of John S. Thorn, deceased, and deed from David F. and Samuel D. Thorn, as the only heirs of John S. Thorn, to Addison Frazer, from whom they inherited the land. The deed from David F. and Samuel D. Thorn to Addison Frazer was executed May 23, 1860, and recorded July 12, 1876. The appellees claimed through the patent to the heirs of John S. Thorn, and sale and conveyance by Samuel D. Thorn (he being sole heir of David F. Thorn) to E. A. Thorn, and by inheritance from the latter. Amanda Gearheart claimed through the same title and through appellants to Charles I. Evans, and through mesne conveyances from him. The sale and conveyance from Samuel D. to E. A. Thorn was claimed to have been in 1861. The deed, it was alleged, was lost, and a substitution was had of the same in the district court of Hays county in 1874.

Verdict and judgment in favor of appellees against appellants for the half interest in the land claimed by them, and in favor of Amanda Gearheart and against appellees for the half interest claimed by her. Appellants appealed from that part of the judgment against them.

The errors relied on are: 1st. The court erred in admitting as evidence, over their objections, the deed from Samuel D. and David F. Thorn to Addison Frazer. 2d. The verdict of the jury was against the evidence.

Finlay & Pasco, for appellants.

No briefs on file for appellees.

WATTS, J. COM. APP.

Robert G. Mitchell, who took the acknowledgment to the deed from Samuel D. and David F. Thorn to Addison Frazer, claimed to and did act as a commissioner for the state of Texas in the state of Georgia. The recitals in the certificate show that he was appointed by H. R. Runnels, governor of this state. Appellants insist that as Runnels' term of office had expired prior to the taking of the acknowledgment, that Mitchell's term had also expired, and that he could not legally exercise the functions of a commissioner.

The statute, after providing for the appointment of commissioners in the several states and District of Columbia by the governor, also provides that the commissioners “shall continue in office during the pleasure of the governor.” Pasch. Dig., art. 3762.

While the legislature used the word office in that connection, evidently it was not intended that these commissioners should be considered civil officers of this state, as the constitution then in force required all civil officers to reside in the state.

It does not appear when Mitchell was appointed, nor do we think that it is material that it should, for when appointed he continued such until the governor should be pleased to recall the appointment. In contemplation of law the governor is ever existing, and always exercising his pleasure with respect to these commissioners. One incumbent may give way to another, but there is at all times the governor, exercising his pleasure in respect to these commissioners. It is not shown that the governor had in the exercise of his pleasure recalled the appointment of Mitchell, and in our opinion, until this is done, he could legally continue to perform the duties imposed upon him as such commissioner by law.

It is also claimed that the seal with which Mitchell authenticated or attested his act was not such as was prescribed by statute. The act under which Mitchell was appointed and acting did not prescribe the requisites of the seal, but simply required these commissioners to attest their acts with their seals. Article 3771, Paschal's Digest, cited by appellant, relates only to the commissioners in the Choctaw, Chickasaw, Cherokee and Creek Indians, and was enacted after the acknowledgment was taken.

The only remaining question is this: Is the verdict of the jury against the evidence? The only material question before the jury was as to the asserted purchase of the land by E. A. Thorn from S. D. Thorn in 1861. Appellants claimed that their father, E. A. Thorn, did purchase the land from S. D. Thorn in good faith, without notice of the Frazer deed, and paid a valuable consideration therefor in money. Upon that issue the case must be determined; for if that is true then the Frazer deed must be postponed to them, otherwise their rights are subordinate to that deed.

There was no conflict in the evidence upon that issue, nor was there any evidence adduced upon that issue by the appellees. That offered by appellants was the decree of the district court of Hays county, in a suit by appellants against the unknown heirs of S. D. Thorn, deceased, substituting a deed from S. D. Thorn to E. A. Thorn for the land in controversy. This substitution is very imperfect, as it does not set forth the substance of the lost instrument, but in terms substitutes a deed...

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7 cases
  • Yund v. First National Bank of Shawnee, Oklahoma
    • United States
    • Wyoming Supreme Court
    • 28 d1 Agosto d1 1905
  • Pardee v. Kuster
    • United States
    • Wyoming Supreme Court
    • 15 d1 Abril d1 1907
    ...in the form of depositions. (Yund v. Bank, 14 Wyo. 81; Williams v. Miles (Neb.), 94 N.W. 710; Lavelle v. Corrigale, 86 Hun, 135; Thorn v. Frazer, 60 Tex. 259.) So, where the rests upon written instead of oral evidence, it stands in the appellate court substantially as though a case of origi......
  • Long v. Shelton
    • United States
    • Texas Court of Appeals
    • 21 d5 Março d5 1913
    ...their credibility, and but one inference can be drawn from their testimony, the court may assume the truth of their statements. Thorn v. Frazer, 60 Tex. 259; King v. Worthem, 37 S. W. 1133; Henderson v. Jones, 2 Posey, Unrep. Cas. 230; Teal v. Terrell, 58 Tex. 257. In this case there is no ......
  • Dallas Hotel Co. v. Newberg
    • United States
    • Texas Court of Appeals
    • 9 d6 Dezembro d6 1922
    ...credibility is not presented to this court so as to justify the application of the rule announced in the case of Thorn's Heirs v. Frazer's Heirs, 60 Tex. 259, to "The finding of a jury upon facts when the evidence is conflicting is conclusive only when the witnesses testifying do so in pers......
  • Request a trial to view additional results

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