Buford v. Bostick
| Decision Date | 17 November 1882 |
| Docket Number | Case No. 1098. |
| Citation | 58 Tex. 63 |
| Parties | T. R. BUFORD v. T. BOSTICK ET AL. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Delta. Tried below before the Hon. Green J. Clark.
Action of trespass to try title to three hundred and twenty acres of land lying in Delta county, and for rents, instituted by appellants on the 1st day of June, 1874. The claim of appellants to the land in controversy was based upon a special act of the legislature requiring the commissioner of the general land office to issue to the heirs of Mary Hamilton, deceased, a headright certificate for twelve hundred and eighty acres of land, approved August 29, 1856. The certificate, bearing the fractional number 4881-4982, was issued by the commissioner on the 29th of August, 1856. On the 29th day of May, 1858, it was sold to T. R. Buford and M. L. Patton, two of the plaintiffs, by the heirs of Mary Hamilton, and conveyed by deed of that date. W. R. Buford, the other plaintiff, owned an undivided one-half locative interest in the lands sued for.
Part of this certificate was located, as plaintiffs insisted, on the land sued for, and was surveyed by the surveyor of Hopkins county November 19, 1858. And the certificate and field notes were returned to and filed in the general land office on the 6th day of January, 1859.
The defendants pleaded not guilty, and that the survey of plaintiffs was void and illegal, because the survey was not made on the ground, nor its boundaries and location so described in the field notes thereof as to designate and identify it from the vacant public domain; nor were the corners and lines plainly marked upon the ground, or so described in the field notes as to give notice that the land had been severed from the public domain; and that defendants, without notice, pre-empted it and made it their homestead.
The defendants, in separate pleas, claimed improvements made in good faith. And the defendants, G. M. Terrell and F. Herrin, in addition to their plea for improvements, pleaded specially and separately that they were innocent purchasers from the state of Texas, for a valuable consideration, fully paid, in good faith, without notice of plaintiffs' claim to the portions of land claimed by them respectively, and to which they had patents. The last two named defendants also pleaded and relied upon the statute of limitation of three years.
All the defendants claim the lands respectively occupied by them by reason of pre-emption surveys made in 1871-2 and in 1873.
Plaintiffs, by first supplemental petition, denied all the allegations set forth in each and all of defendants' answers, and upon the issues thus formed the cause was tried by a jury. General verdict for the defendants, upon which the court entered judgment.
On the trial the court charged the jury as follows:
“If they believe, from the evidence, that the defendants, G. M. Terrell and F. Herrin, more than three years next before the 1st day of June, 1874, located and filed pre-emption claims upon the lands mentioned and described by them in their respective pleas of limitation, and that they occupied, used, cultivated and enjoyed the same continuously, under and by virtue of their respective pre-emption locations, for a period of three years next before the 1st day of June, 1874, and that they obtained patents from the state for the said lands so claimed by them, before the commencement of this suit, viz., the 1st day of June, 1874, then, and in that event, the plaintiffs' right to recover, as against the said defendants, G. M. Terrell and F. Herrin, would be barred by the statute of limitations, and the jury should find for said defendants, Terrell and Herrin.”
This charge was assigned as error.
Other errors assigned are apparent from the opinion, which contains enough of the facts to be understood without further statement.
Sam J. Hunter, for appellants??
Seth W. Stewart and J. A. B. Putman, for appellees.
This case has been previously before this court, 50 Tex., 371. The first assigned error, with the accompanying statement, are as follows:
As part of the commissioner's certificate to a copy of the original certificate and field notes of the Mary Hamilton survey, said commissioner added: “and I do further certify that the said certificate and field notes have never been withdrawn, as far as the records of this office show, since the date of filing, January 6, 1859.
J. J. GROOS, Com'r.”
This certificate, along with the copies to which it was attached, was offered in evidence by the plaintiffs, and was excluded by the court.
The fourth assigned error and statement are as follows:
The certificate is as follows:
“GENERAL LAND OFFICE,
AUSTIN, July 10, 1874.
Mary Hamilton 320-acre survey, No. 54, begins at the S. E. corner of James Russell, and running thence south, west, north and east. There being no James Russell survey returned or represented on map, in the described neighborhood, said Hamilton survey was represented as connected to John Russell's survey, covering the I. Ruble. By a late examination of the old, now canceled, field notes of A. Skidmore's survey, it was found that said field notes call for both the James Russell and Mary Hamilton surveys, describing the same bearing trees given in Mary Hamilton's field notes for her N. W. corner. Both surveys being now properly located, it was found that the I. Ruble survey covered the ground of the James Russell survey, called for in said M. Hamilton's field notes, and that Mary Hamilton covers the following surveys: G. M. Terrell, patented; F. Herrin, patented; Ira J. Tichnor and J. C. C. Fry, all of them of a later date than the said Hamilton survey.
I, Rhoads Fisher, chief clerk of the general land office, do hereby certify that the above is a true and correct statement of the condition of the Mary Hamilton 320-acre survey, as shown by the map and field notes in use and on file in this office.
In testimony whereof I have hereunto signed my name and affixed my official seal, the date first above written.
+---------------------------------------------+
¦[SEAL.]¦RHOADS FISHER, ¦
+-------+-------------------------------------¦
¦ ¦Chief Clerk and Acting Commissioner.”¦
+---------------------------------------------+
The only objection offered to this certificate was, that the “facts sought to be proven thereby are not such facts as may be proven by such certificate.”
These two alleged errors will be considered together.
The statute provides that it shall be the duty of the commissioner of the general land office (which duty, in certain contingencies, devolves upon the chief clerk) to furnish a copy of any paper, document or record in his office, or to give a certificate under the seal of his office, certifying to any fact or facts contained in the papers, documents or records of his office, to any person applying for the same, which copy or certificate shall be received in evidence in all cases in which the originals would be. R. S., art. 2253.
The statute, though intended as a cheap and convenient method of obtaining certain testimony, and should be upheld in a proper case, yet being ex parte in its character, and to some extent admitting the conclusion of the officer, should not be extended beyond its plain import. It does not authorize a certificate of what has not been done in his office, or an argument or deduction from certain assumed premises; but when not a copy of the paper, document or record itself, it should be confined to the fact or facts contained therein.
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