Cox v. Cock

• Citation: 59 Tex. 521
• Decision Date: 01 June 1883
• Docket Number: Case No. 4918.
• Parties: J. M. COX ET AL. v. J. W. COCK.
• Court: Supreme Court of Texas

59 Tex. 521

J. M. COX ET AL.

v.J. W. COCK.

Case No. 4918.

Supreme Court of Texas.

Jun. 1, 1883.

APPEAL from Falls. Tried below before the Hon. Jo Abbott.

Suit by appellee against J. M. Cox et al. to recover land. Plaintiff offered as a muniment of title a patent to Benj. H. Abell.

It appeared from the certificate of the commissioner of the general land office, from his register of second class headrights, that certificate No. 58 was issued to Benjamin H. Abell by the board of land commissioners of Harris county; that four million eight hundred and thirty-three thousand three hundred and thirty-three square varas were located in Milam district, on the north fork of Deer creek; that the field notes were returned to the land office September 30, 1846. The patent No. 59 was issued to Benjamin H. Abell October 30, 1846, for four million eight hundred and thirty-three thousand three hundred and thirty-three square varas on the north fork of Deer creek, in Milam county, sixteen miles from the falls of the Brazos; and, from the indorsement on the patent, it appeared that it was of the second class. It did not appear from any recitation in the patent upon what certificate it was based.

Plaintiff also offered what purported to be a written conveyance from B. P. Abell to John Roy, dated March 26, 1840. The defendant had filed an affidavit charging that the instrument was a forgery. Attached to the instrument was the following certificate: “REPUBLIC OF TEXAS, Galveston County.

Personally appeared before me, R. D. Johnson, chief justice of the county aforesaid, this fourth day of April, 1840, John E. Jeffers, one of the witnesses to the written instrument, who made ____ that Benjamin H. Abell signed the same in his presence.

Given under my hand and seal of office the day and date above.

R. D. JOHNSON,

Chief Justice Galveston County.”

There was a contract between B. H. Abell and F. Neibling, relating to the location of the certificates transferred, attached to this conveyance and dated March 18, 1840. In connection with this paper, the plaintiff offered in evidence the deposition of R. D. Johnson, who testified that he held the office of chief justice of Galveston county about March, 1840; he knew John E. Jeffers, one of the subscribing witnesses, well; Jeffers died in Galveston about 1850; could not say, from an inspection of the writing, whether the signatures of Abell and the subscribing witnesses Graham and Jeffers were genuine or forged; that he (deponent) was the same person who made the certificate of proof on the reverse of the deed, and was positive, from his manner of doing business at the time of the authentication of said instrument, that the witness John E. Jeffers was duly sworn at the time of making the certificate in question; the omission of the word “oath” was an omission on his (deponent's) part.

In the same connection plaintiff produced the certificate of the comptroller, showing the assessment of a portion of the land covered by said patent since 1846, against John Roy, for four hundred and eighty-eight acres; proved payment of taxes by Roy since 1850.

J. A. Martin, attorney for plaintiff, testified that he received said conveyance from J. W. Cock, plaintiff in this suit.

There is also attached to this conveyance a certificate of record in Milam county, on December 13, 1848, and another certificate of record in Falls county, on the 6th day of June, 1859.

The court first explained to the jury what an ancient document was, and then told them that the deed from Abell to Roy was such instrument, and was before them as evidence notwithstanding the affidavit of forgery, and the burden of proving it a forgery was upon those attacking it.

The language of the charge was as follows: “The defendants have filed an affidavit attacking said deed as a forgery. The burden of showing said deed to be a forgery rests upon defendants. If the evidence satisfies your mind that said deed is a forgery, you will find for defendants without further inquiry; but if you are not satisfied that said deed is a forgery from the evidence before you, then you will regard said deed as genuine.”

The defendants after filing the affidavit of forgery offered no evidence. Verdict and judgment for plaintiff. The defendants filed separate defenses, and the cost was taxed below incurred in making one Johnson, a non-resident defendant, a party against the co-defendants, as also his attorney fees, which was assigned as error.

Goodrich & Clarkson, for appellants, cited Stroud v. Springfield, 28 Tex., 663;Gainer v. Cotton, 49 Tex., 101;Williams v. Conger, 49 Tex., 582;Norris v. Hunt, 51 Tex., 609;Primm v. Stewart, 7 Tex., 182; Teal v. Terrell, 47 Tex., 491; Lee v. Salinas, 15 Tex., 495.

J. A. Martin, for appellee, cited, on ancient deed, Gainer v. Cotton, 49 Tex., 118;Shields v. Hunt, 45 Tex., 428;Johnson v. Timmons, 50 Tex., 537;Fitch v. Boyer, 51 Tex., 348.

On description of land, Knowles v. Torbitt, 53 Tex., 557;Rainbolt v. March, 52 Tex., 246;Ragsdale v. Robinson, 48 Tex., 379;Douthit v. Robinson, 55 Tex., 69.

WEST, ASSOCIATE JUSTICE.

The case has been carefully considered, but as it presents no new questions for determination, and the result reached is believed to be correct, it is not deemed necessary to discuss at any length the different grounds of error that have been assigned.

The land located and surveyed by virtue of the certificate was sufficiently identified as the same land embraced in the patent that was offered in evidence. The doubt (if it could be said to be one) arose from the failure of the proper authorities in issuing the patent to state by way of recital, as should always be done, the number, date and class of the certificate on which the survey and patent is based.

A proper construction of the laws, directing the issuance of patents to lands surveyed by virtue of a land certificate, is that the authority (that is, the certificate, etc.) by virtue of which the patent exists should be recited in it. Hart. Dig., art. 1853 et seq.; arts. 1951, 2044, 2186 et passim; Pasch. Dig., arts. 4287, 4289 et passim, 3952-3963 et seq.

Independent of the requirements of the statute in this respect, the patent, which is the evidence of the final severance of the land from the public domain, and of its grant by the sovereign power to a private individual, should, in accordance with the general principles of law applicable to all grants, state the consideration on which it is based, and fully identify the authority on which it rests,...