Andrews v. Marshall

• Decision Date: 01 January 1862
• Citation: 26 Tex. 212
• Parties: H. B. ANDREWS AND OTHERS v. JOHN MARSHALL AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 212

H. B. ANDREWS AND OTHERS

v.JOHN MARSHALL AND OTHERS.

Supreme Court of Texas.

1862.

See this case for a charge held to be calculated to mislead the jury, and, therefore, erroneous, in consequence of the assumption of evidence in the charge, from which the jury might naturally infer the court to be of opinion that the evidence was sufficient to establish an actual possession by the defendant of the land in controversy, which was the main fact at issue. [[[

An instrument executed in 1834, with all the formalities then requisite to constitute it a public or authentic act, is admissible in evidence without proof of its execution; and a copy of such an instrument, duly certified by the clerk who was the lawful custodian of the original, is likewise admissible without proof of the execution of the original. [9 Tex. 85, 212;post, 310; 30 Tex. 104.]

By the laws of Coahuila and Texas in force in 1834, the signature of the officer before whom such an instrument was executed, though not material to its validity, was essential to its character as a public or authentic act, capable of making proof of itself without extrinsic evidence; and in the absence of the officer's signature, the instrument cannot be considered an authentic act. [[[[

If it be shown, however, that the officer kept the originals in a volume for the year, and placed his signature at the end of the volume, this, it seems, would suffice to authenticate the originals as public acts.

But in the absence of such proof and the signature of the officer, the instrument can only be regarded as a private act, the execution of which must be proved in order to make it admissible in evidence.

APPEAL from Bell. Tried below before the Hon. R. E. B. Baylor.

This suit was originally instituted on the 30th of December, 1852, by H. B. Andrews and Charles D. Sayre against some twenty several defendants, to try the title to and recover possession of eleven leagues of land in Bell county, originally conceded by the state of Coahuila and Texas to Maximo Moreno, under whom Andrews and Sayre derived title to an undivided half interest.

In December, 1856, Piety Hadley and her husband, T. B. J. Hadley and Benjamin J. Smith, intervened in the suit, setting up title to the other undivided half interest under the Moreno grant, and they became co-plaintiffs with Andrews and Sayre.

Pending the litigation, compromises were effected between the plaintiffs and all the defendants, except Michael Reed, who claimed one league of the land sued for, setting up title thereto as his headright. His title originated subsequently to the grant to Moreno, under whom the plaintiffs derived title, and the defense upon which he chiefly relied was the statutes of limitations of three and five years.

Reed proved that he settled upon the league in controversy as his headright in 1835, built a dwelling and other improvements, and made a crop. But before the expiration of a year he and the other settlers in that section of the country were driven away and forced into the interior settlements by the hostile Indians. That on thus being driven from his home, he had left his heavy furniture, and at all times thereafter continued openly to claim the league as his headright, and to express his determination to return to and live upon it as soon as the condition of the country would permit. That in 1845, which was as early as it was considered at all safe from Indians, he did return; but, instead of settling on the league, built his houses and opened his farm upon an adjoining labor, which was also part of his headright, but was held by a different patent. He continued, however, to claim the league, exercising over it constant acts of ownership, such as cutting and carrying away timber, pasturing his stock, building pens for them on the league, keeping constant communication with it by a ferry across Little river when the stream was not fordable; all of which acts, it was contended, established a resumption of actual possession by Reed, which, by relation, should be held a continuation of his original possession in 1835.

The eighth instruction given by the court below, at the instance of the defendant, and h??ld to be erroneous in the opinion, is as follows: “An adverse possession of land is an actual, visible, exclusive and notorious appropriation of land, commenced and continued under a claim of right--in other words, it is the intention to claim title which makes the possession adverse. In order for the defendant to hold such possession, it is not necessary for him to actually reside upon the land, but such possession may be held by the defendant's exercising such continued, open and notorious acts of ownership over the land they claim as would give the plaintiffs a right of action for the possession of the land against them, and such as would give general publicity to their claim--such as keeping pens and herding stock on the land, and cutting and carrying away all such timber from the land as the defendant needed for making and keeping up his houses and fences on his farm adjacent to said land, and otherwise using said land openly and notoriously as his own, as his ordinary necessities required or...