Graham v. Henry

• Decision Date: 01 January 1856
• Citation: 17 Tex. 164
• Parties: WILLIAM C. GRAHAM AND OTHERS v. WOODSON D. HENRY.
• Court: Texas Supreme Court

17 Tex. 164

WILLIAM C. GRAHAM AND OTHERS

v.WOODSON D. HENRY.

Supreme Court of Texas.

1856.

The original assignment being upon the back of the conditional certificate in the general land office (so that the defendant could not procure it, the patent having issued), the affidavit of the fact would seem to be a compliance with the statute, which provides for the admission of a certified copy, where the party makes affidavit that he cannot procure the original. (Hart. Dig. art. 745.)

Where the making of an instrument is alleged in pleading, although accompanied with allegations that it was obtained by fraud without consideration, it is not necessary for the adverse party to prove the instrument or introduce it in evidence.

The restriction on the power of the grantees of conditional certificates to assign the same was first introduced by the act of January 4, 1839, and was confined to claims acquired under that act.

Appeal from Henderson. Tried below before the Hon. John H. Reagan.

Suit commenced September 11, 1851, by the appellee against appellants, to recover a tract of land. The plaintiff alleged in his petition that on the 6th day of July, 1838, in the county of Nacogdoches, there was issued to plaintiff by the board of land commissioners of the county of Nacogdoches a conditional certificate for twelve hundred and eighty acres of land; and that on the 27th day of September, in same year, one John S. Thorn, who was also made a defendant, fraudulently caused plaintiff to become intoxicated, with the view of cheating plaintiff out of his said certificate; and that while plaintiff was so intoxicated and unable to do business, said Thorn fraudulently procured from him an assignment of said certificate, without consideration; that afterwards, stating dates, plaintiff proved out his unconditional certificate, and caused it to be located, surveyed and patented on the land in controversy; that defendants have in some way got possession of the patent; that plaintiff was residing on the land, and during his temporary absence from home defendants came and took forcible possession, etc. Prayer for cancellation of the assignment of the conditional certificate, for the delivery of the patent, for the possession of the land, etc.

The defendant Graham filed an affidavit that the original transfer from plaintiff to John S. Thorn, for said Henry's conditional certificate for 1,280 acres, was not in affiant's possession, but was in the general land office of the state of Texas. At the trial defendant offered a certified copy of said certificate and the transfer on the back thereof, in evidence; but it was excluded, on what ground did not appear. The assignment purported to be for value received, and was under seal The only evidence was the patent to the plaintiff, and a deed from Thorn to Graham. The court instructed the jury that the patent was proof of title in Henry, and that they should find for him, unless there was evidence of a superior title in the defendants.

The defendants asked the court to instruct the jury that the plaintiff having averred in his petition that he had transferred his conditional certificate to Thorn, and set up in avoidance thereof the want of capacity by reason of intoxication, and also want of consideration and fraud and imposition practised upon him by Thorn, he must prove the statements as alleged in order to enable him to recover in this suit. Which instruction the court refused to give.

Verdict and judgment for plaintiff. Motion for new trial overruled, etc.

R. A. Reeves and T. J. Jennings, for appellants.

J. E. Cravens, for appellee.

WHEELER, J.

The original assignment from the plaintiff to Thorn, being upon the back of the conditional certificate in the general land office, so that the defendant could not procure it, the affidavit of the fact would seem a compliance with the statute, which provides for the admission of a certified copy. (Dig. art. 745; 11 Tex. 235;12 Id. 534.) But the making of the assignment was expressly averred in the petition, and though thereby rendered admissible, there was no necessity for the defendant to produce it in evidence. There can never be a necessity to prove matters of fact which the adverse party has alleged in his pleadings. The jury are sworn to try the issues between the parties; but matters expressly admitted on both sides, not being in issue, do not require proof. It is suggested by the counsel for the plaintiff, that his pleadings containing the admission of the transfer of the certificate were abandoned. It does not so appear by the record. The mere fact that the plaintiff offered no evidence in support of his averments was not such abandonment of them as to deny the defendant the benefit of any admissions they contained. They do not appear to have been withdrawn by the plaintiff.

But it is suggested that the court excluded the evidence on the ground that the certificate was not assignable; and consequently that the assignment...