Fowler v. Lowry
| Decision Date | 01 January 1877 |
| Citation | 48 Tex. 408 |
| Parties | PETERSON & FOWLER v. WM. LOWRY. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Hunt. Tried below before the Hon. Green J. Clark.
The case is sufficiently stated in the opinion.
Bennett, Ballinger & Bennett, for appellant.
W. C. Clark, for appellee, cited Hawley v. Bullock, 29 Tex., 222;Martel v. Somers, 26 Tex., 560;Wilson v. Williams, 25 Tex., 66;Love v. Berry, 22 Tex., 378;Johnson v. Newman, 43 Tex., 628.
This is an action of trespass to try the title to 153 acres of land, part of the headright of M. H. Ragsdale, brought by appellants against appellee, who was admitted to have been in possession of the land when the suit was instituted, on the 28th of January, 1874.
Both parties claim title to the land under said Ragsdale, to whom a patent was issued for the land in 1860.
The title of the plaintiffs, as shown by the evidence, was a bond for title from said Ragsdale to J. L. Fowler, for 600 acres, including the land in controversy, for $600, on the 29th of November, 1867, and a deed from Ragsdale to J. L. Fowler and R. Peterson, the plaintiffs below, for the same land, (600 acres,) acknowledging the same consideration, ($600,) which deed was recorded in Hunt county on January 30, 1871, having been filed for record on the 8th of October, 1870. It was proved, by the depositions of said Ragsdale, that the said $600 was paid to him for the land by J. H. Fowler, (at what time is not stated,) and at his request he made said deed to said plaintiffs.
The title of the defendant below, Wm. Lowry, consisted of field-notes and survey of 2,618 acres of land, by virtue of the league and labor certificate of said Ragsdale, made on the 24th of April, 1844, (as therein recited,) for J. H. Johnson, and of a corrected resurvey of same land under the headright made on the 25th of August, 1860, for (as therein recited) M. H. Ragsdale, and a transfer of that amount of said certificate by said Ragsdale to J. H. Johnson, on the 10th of July, 1844, which was after the location and survey of the land; and it was proved by McClure that he surveyed it for Johnson, who had possession of the certificate before the location and survey was made. This transfer was recorded in Hunt county on the 8th day of March, 1875; and an instrument in writing, signed by M. H. Ragsdale, as follows, to wit:
“This is to certify that heretofore I transferred to James H. Johnson, of Red River county, for a valuable consideration, the balance of my league and labor headright certificate No. 453, first class, issued by the board of land commissioners for Red River county on the 5th day of March, 1838. This balance is what is left after deducting the survey made on said certificate by G. W. Still; and this is given to enable said Johnson to obtain the patent for the part transferred to him.
Witness my hand, and scroll for seal, this 9th day of December, A. D. 1856.
M. H. RAGSDALE.” [L. S.]
Upon this instrument, there was indorsed an acknowledgment by said Ragsdale before W. S. McClure, notary public of Fannin county, in the State of Texas, and a memorandum as follows: “Filed for record July 20, A. D. 1868, at 3 o'clock P. M., and recorded July 21, A. D. 1868, in record-book K, pages 39 and 40.”
To which is attached a certificate, as follows:
+-----------------------+
¦“THE STATE OF TEXAS, ¦)¦
+---------------------+-¦
¦Hunt County. ¦)¦
+-----------------------+
I, N. McDougald, clerk of the District Court in and for said county, do hereby certify that the above and foregoing is a true and correct copy of a transfer, as appears of record in book K, pages 39 and 40, Hunt county records of deeds, said transfer purporting to have been made by M. H. Ragsdale to James H. Johnson on the 9th day of December, A. D. 1856. To certify which, I hereto set my name and affix my seal of office, at Greenville, this the 17th day of February, A. D. 1874.
+---------------------------------------------+
¦[SEAL.]¦N. MCDOUGALD, ¦
+-------+-------------------------------------¦
¦ ¦Clerk District Court, Hunt county. ”¦
+---------------------------------------------+
This instrument, with the accompanying evidence of its being a recorded instrument, is here copied, because it is the first instrument in writing, signed by M. H. Ragsdale, concerning the land in controversy, that was recorded in Hunt county. It, with its authentication and evidence of recording, was admitted in evidence, by agreement, without objection. In addition to this, the defendant's...
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