Hanrick v. Dodd

Decision Date25 June 1884
Docket NumberCase No. 5075.
Citation62 Tex. 75
PartiesE. G. HANRICK v. W. A. DODD.
CourtTexas Supreme Court

OPINION TEXT STARTS HERE

APPEAL from Williamson. Tried below before D. W. Doom, Esq., Special Judge.

This case involved the validity of the same grant to eleven leagues of land situated in the colony of Austin & Williams (now in Williamson county) which was involved in the case of Hanrick v. Cavanaugh, 60 Tex., 1. Reference is made to the very lengthy statement deemed necessary in that case for a more clear understanding of this. The appellant relied on the protocol or act of possession of a grant for eleven leagues of land to Rafael de Aguirre. In this case Dodd, the defendant, claimed one hundred and sixty acres of the land alleged to be covered by the grant, under a pre-emption claim, originating on the 14th day of September, 1874. The defense was forgery of the grant, which it was urged consisted not in the forgery of the name of Lesassier, the officer who signed the grant, or of his assisting witnesses, but in changing the name of the grantee in the protocol and the description of the land granted, as well as the reference in the grant to the date of the concession by virtue of which the title was extended. These changes, it was claimed by the defendant, were made by erasing words and letters and parts of words, and substituting others, without revealing the erased words and invalidating them in the notes of emendation before the grant was signed. The words changed were noted by validating the new word, but the old words were not named in the foot-notes, or revealed and invalidated in terms.

The forgery charged was of the protocol or matrix of the grant, and not of the testimonio, which was not in evidence. It was contended by the defendant that the title, when issued, was a grant to one Perfecto Valdez, whose name still appeared in the grant in the habendum clause, and to whom a concession had issued on the 13th day of July, 1830. That the name of Perfecto Valdez had been erased in the granting clause, and that of Rafael de Aguirre inserted, letters and parts of letters of the original name being preserved. The date of the concession to Aguirre was the 14th of June, 1830, and it was contended that the grant showed on its face a change in the reference to the concession in which it issued from “13th of July” to “14th of June.”

Photographic copies of the grant were used on the trial, which De Bray, the Spanish translator in the general land office, after inspecting, stated revealed the alterations and changes as shown by their original. His testimony, pointing out and showing those changes as they appeared in the original, was objected to for the following reasons:

1. The changes are in writing.

2. The changes, whatever they may be, are manifest to the jury on an inspection of the photographs, as much so as they are to the witness.

3. It is not competent for the witness to explain orally to the jury what he may see, or think he sees, the jury being as able to see as he is.

4. The paper fully explains itself.

5. If there be a defect in the paper, it is latent, and cannot be explained save by appealing to the whole instrument--not only of the final title itself, but to the preceding parts on which the final title is founded.

The objections were overruled, and the witness De Bray testified in regard to those alleged changes.

His testimony was, in the main, about as detailed in Hanrick v. Cavanaugh, 60 Tex., 1.

With a copy of the protocol in his hand, Col. De Bray pointed out the erasures, substitutions, interlineations and emendations, and how they were made, and what sort of pen and ink he thought was used. He said the whole instrument, including the alterations and foot-notes, was in Samuel M. Williams' handwriting, but the last four words, “tambien, tambien, Junio, Junio,” were a little cramped, and did not resemble the bold handwriting of Samuel M. Williams. That the alterations were all noted by mentioning the substituted words above the signatures of the alcalde and assisting witnesses.

He held in his hand two photographic copies of the last page of the protocol, both taken from the same negative under his supervision. In one of these copies the four lines of foot-notes at the bottom of the protocol had been rubbed out; in the other they had not been interfered with. He said that the one with the foot-notes in it represented the usual space that Lesassier, in signing his titles, left between the last line of the writing and his signature, but the one with the foot-notes rubbed out showed double the space usually left by him between the last line of the writing and his signature, and considerably greater space than he ever saw in any title in the general land office issued by Lesassier. That he had examined Lesassier's titles in the land office, to see if any of them had so great a distance between the writing and signature as would be in our title with the foot-notes erased, and he did not find one. He also exhibited a photographic copy of the last page of the Thomas de la Vega title, which was also made under his direction, and said it was a fair specimen of the last page of Lesassier's title. He stated that it had the same space between the writing and Lesassier's signature that this title had with the foot-notes in it, and double the distance it had with the foot-notes rubbed out.

The record, among much other evidence, showed:

1. Two final titles to Rafael de Aguirre (if the one relied on by appellant was genuine) to different eleven leagues of land, on one and the same concession, each signed by the same assisting witness, and extended by the same alcalde, Lesassier.

2. The survey of the eleven leagues in controversy was without date.

3. The first title extended was for eleven leagues on the Brazos river, and dated October 4, 1833; the second title was for ten leagues in controversy on the San Gabriel and one league elsewhere, and dated eighteen days afterwards, October 22, 1833.

4. The title in controversy was in the handwriting of Samuel M. Williams, one of the company of Austin & Williams, colonial empresarios (except the last words “tanbien Junio-Junio Valen), who acted under what was claimed an irrevocable power of attorney, in which Aguirre renounced to him all his rights and interests.

5. Williams, as such attorney and party in interest, applied, if the title be genuine, to the alcalde at San Felipe de Austin, October 4, 1833, for title of possession to the eleven leagues in controversy on the San Gabriel, as the title now reads, and on the same day of the same year he applied on a copy of the same concession to the same alcalde of San Felipe de Austin (Lesassier) for the eleven leagues for the same Aguirre on the Brazos river, title to which was issued the same day (October 4, 1833).

A Spanish copy of the protocol, recorded in Milam county in 1838, containing the words of the protocol of the Williamson county land as they now appear (except the last four lines, which are written in words which it was claimed validated the apparent alterations of the original), was read in evidence.

It was claimed by appellant, that, no matter whether the alterations in the protocol were made according to law or not, they would not affect the legality of the title as a title to Aguirre, contending that the question of legality of the change could not be raised in this case, and was foreign to the issue of forgery.

In 1830 Perfecto Valdez obtained a concession for eleven leagues of land, and with the permission of the empresario it was surveyed on the east bank of the Brazos river. The theory of the appellant, in accounting for the changes apparent on the face of the grant, was as follows: That Saml. M. Williams, the empresario, who usually prepared the land titles in his colony, wrote one for Valdez for the land surveyed for him on the Brazos, and had it ready to be signed by the alcalde and delivered to Valdez upon his complying with the usual conditions, and making application for the title; that it did not appear that Valdez ever made application for the title, and for this or some other cause it was not signed by the alcalde and delivered to him, as at first contemplated; that this blank, unsigned title being already written out in due form, and being upon stamp paper, which was valuable and difficult to procure, and not being needed as a title to Valdez, was utilized by Saml. M. Williams in preparing the Aguirre title; that he erased Valdez's name and substituted that of Aguirre; he also erased the river Brazos and substituted San Gabriel, and interlined Cow Bayou; that he also changed some dates which corresponded with the concession and orders issued for Valdez, so as to make them correspond with the Aguirre concession and orders; that it was thus changed from an unsigned title to Valdez for eleven leagues of land on the Brazos, to an unsigned title to Aguirre for eleven leagues of land on San Gabriel and Cow Bayou; that these substitutions and interlineations were all noted at the foot of the title by Saml. M. Williams, and validated; that it was then signed in due form by the alcalde and assisting witnesses; and that in changing the Valdez blank title, so as to utilize it as a title to Aguirre, as above stated, Saml. M. Williams omitted in one place (in the habendum clause) to erase Valdez's name and substitute Aguirre's, and it was signed by the alcalde, and now appears with Valdez's name in it. (This was urged as an objection to the title.)

There was a great mass of evidence detailed on both sides, which the limits of a report, already transcended, will not permit to be detailed. The above, in connection with the statement made in Hanrick v. Cavanaugh, 60 Tex., 1, involving the validity of the same title, and with the following instructions asked by appellant and refused, must suffice. The charges thus asked and refused were as follows:

“Forgery is the making of a false instrument in writing without...

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