Bailie v. Western Live Stock & Land Co.

• Decision Date: 28 April 1909
• Citation: 119 S.W. 325
• Parties: BAILIE et al. v. WESTERN LIVE STOCK & LAND CO.
• Court: Texas Court of Appeals

119 S.W. 325

BAILIE et al. v. WESTERN LIVE STOCK & LAND CO.

Court of Civil Appeals of Texas.

April 28, 1909.

Rehearing Denied May 26, 1909.

Error from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by James Bailie and others against the Western Live Stock & Land Company. Verdict was instructed for defendant, and plaintiffs allege error. Affirmed.

F. G. Morris, Howell Johnson, and Storms & Storms, for plaintiffs in error. Denman, Franklin & McGown, for defendant in error.

FLY, J.

This is an action of trespass to try title to 1,280 acres of land patented by the state of Texas to the heirs of Thomas J. Robinson, instituted by plaintiffs in error, who will be denominated plaintiffs hereinafter, in Pecos county, but the venue was changed to Bexar county by agreement of the parties. Defendants in error, defendants in the lower court, pleaded not guilty, and limitations of three, five, and ten years. The cause was heard by a jury and a verdict instructed for defendants.

All the parties claim title through an act of the Legislature of 1860, which authorized the issuance of land certificates by the Commissioner of the Court of Claims to the heirs of Thomas J. Robinson for one-third of a league headright, 320 acres bounty, and 640 acres donation. A patent was issued to the heirs of said Robinson on July 23, 1868. The only evidence of heirship offered by plaintiffs was the testimony of James Bailie and Hugh Robinson. The former swore that he was a native of Ireland and 73 years of age; that his mother had among others a brother named Thomas Robinson, under whom plaintiffs claim; that witness first knew him personally in 1847 in Ireland; that said Thomas Robinson had been in the United States prior to that, and said be was going to Texas. The witness did not know when Thomas Robinson first came to Texas, but thought it must have been in 1835, about the time his brother came. The witness came to Texas in 1852, and went back to Ireland in 1857, when his mother told him about his Uncle Thomas. Witness went to Ireland again in 1868, and his mother asked him about property belonging to Thomas, and witness on his return hunted up some of his uncle's property and sold it. The witness swore that his Uncle Thomas died in 1852, and was buried at Mission Valley, about 18 miles above Victoria. Witness never saw his uncle in Texas. The other witness, Hugh Robinson, swore that his sister told him that their uncles came to Texas and owned land here and his Uncle Thomas came at an early day. Witness never saw him, and never heard of the land until the suit was brought. The sister who told the witness about the uncles knew nothing about Thomas Robinson except what her mother told her. None of the plaintiffs had ever paid taxes on the land. The witness Bailie did not know by hearsay, family tradition, or otherwise when Thomas Robinson came to Texas. The only thing that he would swear to in that connection was "it must have been about the time the others came— the time James Robinson came. I suppose the time his brothers came in 1835. I don't know of my own knowledge, though, when he came to Texas." He also said as to his conversation with his mother: "She told me when he came here, and, if I remember right, he must have come with James Robinson, who came in 1835." He did not swear that his mother told him Thomas Robinson came to Texas in 1835. Mere identity of names between the uncle of Bailie and the person to whose heirs the Legislature gave a land certificate it will be seen from the testimony must be relied on to establish any connection between plaintiffs and the land in controversy. It is held, however, that similarity of name is ordinarily sufficient to establish identity of a person whose name appears in a chain of title where there is nothing in the evidence to cast a suspicion on the case. Chamblee v. Tarbox, 27 Tex. 139, 84 Am. Dec. 614; Robertson v. Du Bose, 76 Tex 1, 13 S. W. 300; McNeil v. O'Connor, 79 Tex. 227, 14 S. W. 1058.

On the trial of the case defendant introduced in evidence certain orders made in the administration of the estate of Thomas J. Robinson, in Falls county, Tex., in connection with the sale of the land certificate granted by the Legislature of Texas to the heirs of Thomas J. Robinson, which orders were objected to by plaintiffs, but, upon the objections being overruled, plaintiffs, without waiving their objections to the aforesaid orders of the probate court, introduced a transcript of the entire proceedings of the court in the administration of said estate. Among the matters introduced by them was the application for letters of administration, in which it was represented that Thomas J. Roberson died in 1836. That discrepancy in the spelling can cut no figure, however, for in the order granting the administration, which was also introduced in evidence, the estate is described as that of Thos. J. Robinson, and in all of the orders of the court it is so designated. It has been held in this state that statements made by administrators in applications to the probate court which tend to identify the person whose estate is being administered are admissible as bearing on such question of identity. Byers v. Wallace, 87 Tex. 503, 28 S. W. 1056, 29 S. W. 760; Minor v. Lumpkin (Tex. Civ. App.) 53 S. W. 364. Now, in the copy of the application for letters of administration which plaintiffs introduced in evidence, it is asserted that the Thomas J. Robinson whose estate was sought to be administered had died in 1836, and in an order of the court, which, as will hereinafter appear, we think was admissible in evidence, it is stated that the special act of the Legislature under which plaintiffs necessarily claim was procured at the instance of the same administrator who made the application. The legislative grant was therefore made to the estate of a man who was represented to have died in 1836, and consequently could not have been the Thomas Robinson under whom plaintiffs claim, because he was in Ireland in 1847, and died in 1852. If the evidence of identity found in the probate proceedings had no other effect, they cast a suspicion upon the evidence of identity afforded by a similarity of names. Not only did those papers create a suspicion as to the identity of Thomas Robinson with Thomas J. Robinson to whom the...