Beaumont Pasture Co. v. Smith

• Decision Date: 12 February 1886
• Docket Number: Case No. 2185
• Citation: 65 Tex. 448
• Court: Texas Supreme Court
• Parties: BEAUMONT PASTURE CO. v. PRESTON & SMITH.

65 Tex. 448

BEAUMONT PASTURE CO.

v.PRESTON & SMITH.

Case No. 2185

Supreme Court of Texas.

Feb. 12, 1886.

APPEAL from Jefferson. Tried below before the Hon. W. J. Wingate, special judge.

This was an action of trespass to try title, brought by Preston & Smith against the Beaumont Pasture company, to recover a league of land in the possession of the latter. Defendants pleaded not guilty. The trial was by jury, and resulted in a verdict and judgment for the plaintiffs. The defendants appealed. The paragraph of the court's charge to the jury, relating to the written instrument offered in evidence by the plaintiffs, is as follows:

In this case the defendants file an affidavit, in which they attack a certain deed offered in evidence by the plaintiffs, purporting to have been executed by Joseph Butler, conveying the land in controversy to E. D. Johnson. This raises an issue as to the genuineness of the deed. You are to determine this issue from the evidence in the case, and in its determination you are to be governed by the following rules: A deed which is over thirty years old, which comes from the proper custody, and which is free from suspicion, and which has been acted on by the party or parties claiming under it, proves itself and proves its own execution, and is presumed to be genuine; and the burden of proof rests on the party attacking it as a forgery, to establish the fact of forgery.

From this brief statement and the court's opinion, the case, it is believed, will be understood.

O'Brien & John, for appellants, on the proposition that the court erred in admitting the deed from Butler to Johnson, offered by the plaintiffs as an ancient document, cited: Strowd v. Springfield, 28 Tex. 649;Williams v. Conger, 49 Tex. 582, 594, et seq; Gainer v. Cotton, 49 Tex. 102, 116-118;Holmes v. Coryell, 58 Tex. 688;Jordan v. Robson, 27 Tex. 612;Willis v. Lewis, 28 Tex. 185;Houston v. Blythe, 60 Tex. 506;Belcher, et al. v. Fox, 60 Tex. 527;Cox v. Cock, 59 Tex. 521; 1 Greenl. Ev., par. 564; Harrison v. Boring, 44 Tex. 255.

On the proposition that the court erred in excluding the certified copy of the act of sale made by Jos. Butler to David Brown before a judge of the first instance, in 1835, offered in evidence by the defendants, they cited: Thorn's Heirs v. Frazer's Heirs, 60 Tex. 262;Mills v. Herndon, 60 Tex. 357;Holmes v. Coryell, 58 Tex. 685;Bigham v. Talbot, et al., 63 Tex. 271;Ragsdale v. Robinson, 48 Tex. 379; Kingston v. Pickens, 48 Tex. 395; Flannagan v. Boggess, 46 Tex. 335;Wilson v. Smith, 50 Tex. 370; Farris v. Gilbert, Ib. 356; Knowles v. Torbitt, 53 Tex. 558;Bowles v. Beall, 60 Tex. 324;Varamendi v. Hutchins, 48 Tex. 551;Waelder v. Carroll, 29 Tex. 329;Hanrick v. Dodd, 62 Tex. 75;Bateman v. Bateman, 21 Tex. 433;Hooper v. Hall, 30 Tex. 154;Lee v. Wharton, 11 Tex. 61-72;Botts v. Martin, 44 Tex. 91; Prov. Const. of Tex., Pas. Dig., art. 6, p. 26; Burton et al. v. Ferguson et al., 49 Ind., 488.

And as to effect of payment of taxes: Glasscock v. Hughes, 55 Tex. 473;““Boundaries Jefferson Co. etc.” Pas. Dig., p. 175.

On alleged error of the court in its charge to the jury, they cited: Jordan v. Robson, 27 Tex. 612;Williams v. Conger, 49 Tex. 582-596;Willis v. Lewis, 28 Tex. 185; H. & T. C. R'y v. Nixon, 52 Tex. 20;Williams v. Davidson, 43 Tex. 2.

Thos. J. Russell, for appellees, that the deed from Butler to Johnson, offered in evidence by the plaintiffs, as an ancient document, was properly admitted, cited: Hollis v. Dashiel, 52 Tex. 187;Howard v. Colquhoun, 28 Tex. 134; 1 Greenl. Ev., sec. 564, note 3; Gainer v. Cotton, 49 Tex. 101;Strowd v. Springfield, 28 Tex. 649;Cox v. Cock, 59 Tex. 521; 1 Phil. Ev., p. 477; Id. Cowan & Hill's Notes, 903.

That the instrument offered in evidence by the defendants as a certified copy of an act of sale made by Jos. Butler to David Brown, before a judge of the first instance in 1835, was properly excluded, he cited: Broxson v. McDougal, 63 Tex. 193; P. D??, 4973, 4975; Norris v. Hunt, 51 Tex. 609;Johnson v. Granger, 51 Tex. 42;Knowles v. Torbitt, 53 Tex. 557;Waelder v. Carroll, 29 Tex. 317;Kingston v. Pickens, 46 Tex. 99.

On the right of plaintiffs to withdraw their agreement, waiving proof of certain facts, he cited: Hancock v. Winans, 20 Tex. 320;Botts v. Martin, 44 Tex. 91.

ROBERTSON, ASSOCIATE JUSTICE.

The appellees brought this suit for a league of land in Jefferson county, granted to Joseph Butler. They claimed under an instrument purporting to be a deed from Joseph Butler to E. D. Johnson, dated September 16, 1840. Upon the paper is what purports to be the proof of the deed for registration by two of the three subscribing witnesses before the chief justice of Shelby county, and where the seal should be impressed is a red stain, which may be the relic of a sealing wafer. The certificate of proof is dated November 5, 1840, and upon it, as sufficient authentication, the paper was admitted to record in the proper county, on March 23, 1837. The instrument is worn, and, in appearance, aged. The plaintiffs, who claimed under it, produced it at the trial, and it was shown that they obtained it from the party named in it as vendee. The name of the grantee and the date appear to have been written in a different ink and penmanship, and, probably, at a different time from the other words in the instrument. The naked eye does not discover the change in the date testified about by the experts.

In making the proof upon which such paper gets to the jury, the party offering it proceeds ex parte. If, without considering any other evidence than that produced by him, there is enough to raise an issue of fact upon the genuineness of the document, it is proper for the court to allow the paper to go before the jury, and the issue of fact is then determined by them, after hearing all the testimony on both sides. 49 Tex. 594; Id., 118; 1 Greenl. Ev., sec. 21.

The preliminary proof before the judge is merely an earnest of the issue. What shall be sufficient for this purpose cannot probably be embraced in a definition that would suit the peculiar facts of every case. It would be always proper to admit the paper when the proof is sufficient, if none opposing is offered, to sustain a verdict in favor of the genuineness of the instrument. In some cases it might be proper to admit it on less than this. Without stamping upon the testimony any estimate of the weight we may attach to it, we think the paper purporting to be a deed from Butler to Johnson was properly admitted to go before the jury for them to pass on the question of genuineness.

In this connection it may be remarked that it is not a correct practice for the court to charge the jury that such and such proof constitutes prima facie evidence of the execution or genuineness of the paper in question. In the case of Cox v. Cock, 59 Tex. 524, that charge was not considered reversible error under the facts of the case, and in Holmes v. Coryell, 58 Tex. 689, the error was covered by other instructions, and it evidently did not influence the result. In this case, the charge given at the request of the appellant very likely corrected any misapprehension on the part of the jury, which the court's instructions may have induced.

With respect to an instrument offered as ancient, the jury should be informed of the conditions upon which the law dispenses with the ordinary methods of proving the execution of private writings, but whether the conditions exist or not, and whether the circumstances proved to corroborate the antiquity and genuineness of the paper are sufficient, after the court has heard enough to make the issue, should be determined by the jury as any other fact, without any intimation of the judge's opinion. It is entirely proper in our practice for the court to instruct the jury that a fact proved on one side, with no conflicting proof on the other, is an established fact. Again, when the statute declares that certain testimony shall be prima facie evidence of a fact, to instruct the jury to accord to the testimony this weight is allowable. But when, though there may be no conflict upon the circumstances in evidence, their sufficiency to establish another fact is an issue before the jury, the court ought not to prejudice their determination by telling them what might be considered as a prima facie case. This is fixing the weight of a portion of the evidence, and is an unwarranted invasion of the jury's province.

Courts of chancery have built up a great and wise system of rules to govern themselves in determining questions of fact. They are but so many scales for weighing the different kinds and phases of testimony not allowed to be furnished to the jury. A jury knows nothing of these rules; they search for the truth with the free use of all their faculties, and doubtless find it more generally by instinct, intuition and common sense than they would by any process that would filter or exclude the use of these honest and fearless guides. The finest feature, perhaps, of a jury trial is that it ends in a verdict which is not the result of artificial and technical tests and measures; and this feature our statute has carefully preserved by forbidding an instruction upon the weight of the evidence.

The defendants claimed the land by a regular chain of transfers from David Brown down to them, and offered in evidence a certified copy, from the records of Jefferson county, of the testimonio or second original of an authentic act of sale from Joseph Butler to David Brown. This paper, as a recorded instrument, was impeached by the statutory affidavit, and, to fulfill the requirements of the common law, the defendants proved a thorough search for the protocol in the office of the county clerk of San Augustine county. The registered testimonio purported to evidence an act of sale before A. Hotchkiss, as judge of the first instance, on December 16, 1835. Article 14, of the Provisional Government of Texas, required these judges to turn...