60 Tex. 259 (Tex. 1883), 1434, Thorn's Heirs v. Frazer's Heirs

Docket Nº:1434.
Citation:60 Tex. 259
Opinion Judge:WATTS, J. COM. APP.
Party Name:THORN'S HEIRS v. FRAZER'S HEIRS.
Attorney:Finlay & Pasco, for appellants. No briefs on file for appellees.
Case Date:October 30, 1883
Court:Supreme Court of Texas
 
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Page 259

60 Tex. 259 (Tex. 1883)

THORN'S HEIRS

v.

FRAZER'S HEIRS.

No. 1434.

Supreme Court of Texas.

October 30, 1883

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...

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