Hanrick v. Cavanaugh
| Decision Date | 22 June 1883 |
| Citation | 60 Tex. 1 |
| Parties | E. G. HANRICK v. JOHN CAVANAUGH. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Williamson. Tried below before the Hon. W. A. Blackburn.
This was a suit of trespass to try title, in ordinary form, by appellant.
Appellee defended on several pleas, by original and amended answer:
1. Demurrer.
2. General denial and not guilty.
3. Limitation under the three, five and ten years.
4. Boundary; and
5. Improvements in good faith.
The assignments of error were as follows:
1. The court erred as set out in the several bills of exception, Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9.
2. The court erred in refusing to grant a new trial, for the several reasons set out in the motion therefor.
3. The court erred in overruling plaintiff's motion to render judgment in his favor non obstante veredicto.
4. The court erred in its charge, in chief, as set out in bill 8.
5. The court erred in admitting evidence to the jury, over the objections of plaintiff, as set out in bills 1, 2 and 13.
6. The court erred in excluding evidence, as shown in bill 4.
7. The court erred in refusing charges asked by plaintiff's bill.
8. The court erred in giving charges asked by defendant. Bill 5, and combined bill 5, 6, 7 and 8.
9. The court erred in modifying and changing charges asked by plaintiff. Bill 5, 6, 7, 8.
11. The verdict of the jury in general, and specially on special issues 1 and 2, are without evidence, against evidence, and there is no evidence to sustain, support or excuse the verdict and verdicts on special issues.
12. The verdict of the jury generally, and on the special issues 1 and 2, are without evidence, against evidence, without law, and against law.
13. The court erred in not withdrawing from the jury the evidence mentioned in bills 2 and 3, for the reasons mentioned in motion therefor.
The plaintiff introduced the following evidence:
1. A certified, translated copy of the original grant for eleven leagues of land granted by the government of Coahuila and Texas to Rafael de Aguirre, dated on the 22d day of October, 1833, and signed by Luke Lesassier, alcalde of the appropriate jurisdiction, the assisting witnesses being Robert Peebles and C. C. Givens.
The grant consisted of the usual parts: 1. Application for concession. 2. Concession. 3. Application for the land. 4. Reference to empresarios. 5. Consent of empresarios. 6. Selection of the land. 7. Survey. 8. Return of field notes; and 9. Extension of final title.
2. Testimonio of power of attorney from Rafael de Aguirre to Samuel May Williams to sell the granted land, dated the 5th day of May, 1832, executed before Juan Gonzales, with assisting witnesses Jose Narzo Ortez and J. Ml. Moral, and which had been duly recorded in the counties of Falls, Williamson and McLennan.
3. Original deed from Rafael de Aguirre, by his attorney in fact, Samuel May Williams, dated May 1, 1838, for the eleven leagues of land, to Asa P. Ufford, which deed had been duly recorded in Falls and Williamson counties.
To the three foregoing instruments defendant interposed an affidavit of forgery, under art. 3716, Pasch. Dig.
The court passed on the second and third instruments, and charged the jury that they were valid and conveyed title; but as to the original title, he permitted the attack on it to stand, and submitted special issues to the jury on that subject, viz.:
Plaintiff introduced Governor E. M. Pease, who testified as follows:
1. Is sixty-eight years old.
2. Came to Texas in 1835.
4. Has held various offices.
5. Knew Robert Peebles and C. C. Givens; became acquainted with them in 1835. Did not know Luke Lesassier.
6. Knew the individual handwriting of Robert Peebles and C. C. Givens as early as the year 1835, from having seen each of them frequently write in the year 1835, and from having copied much of the handwriting of each of them in 1835 and 1836.
7. I knew the handwriting of Luke Lesassier from having seen it both officially, as the alcalde of the municipality of Austin, in the court records at San Felipe, … and from having often copied his writings and signatures from said records, in the year 1835 and subsequent years.
8. It is his impression that he has examined, at the general land office at Austin, the original title to Rafael de Aguirre for eleven leagues of land, dated 22d of October, 1833, several times, but had given the same careful examination on the day he was testifying.
9. He finds Lesassier's signature to the stamp on the first page of said title; also on the reverse sides of the third and fourth leaves, and below it, the signature of Robert Peebles as assisting witness; also finds signature of Lesassier on the sixth leaf at the end of the final title, and below it the signatures of Robert Peebles and C. C. Givens, as assisting witnesses, all of which signatures he believes to be those of the several persons who purport to have made them.
10. He believes from his knowledge of the handwriting of Lesassier, Robert Peebles and C. C. Givens, that the several signatures of the one and the other of said persons, wherever they occur in said title, are their genuine signatures, and were made by them respectively.
11. He has examined the body of said title, and the notes of emendation at the foot thereof, and believes the body of the title and the notes of emendation are in the handwriting of Samuel M. Williams, and this belief is based on his knowledge of the handwriting of said Williams, derived from having often seen him write and copying the same.
12. He has examined the signature of L. Lesassier, the alcalde by whom said original title purports to have been issued, and also the signatures of Robert Peebles and C. C. Givens, the assisting witnesses, all at the foot and conclusion of said title, and believes said signatures are the genuine signatures of the parties by whom they purport to have been made, and were made by them respectively; and this belief is founded on the knowledge of their handwriting before stated.
Cross-examined: He believes the handwriting in the face of said title to be that of Samuel M. Williams. He means to say that all of the face of said title and notes of emendation--all of it--except the signatures thereto, was written by Samuel M. Williams. The words “catorce,” and “Rafael Aguirre,” and and “Cow Bayou,” and also note that the words “catorce,” “Rafael Aguirre,” and “Arroya San Javiel,” are emendado, or amended.
4. Plaintiff then introduced a deed for the land from Asa P. Ufford to Joseph Ufford, dated the 11th day of August, 1851.
5. Also a deed from Joseph Ufford to Edward Hanrick for the same land, dated the 9th day of January, 1855, and recorded the 11th day of February, 1859, in Williamson county.
6. Plaintiff then proved that he was the heir of Edward Hanrick.
7. He then proved by surveyors that the tract of land sued for was within the boundary lines of the Rafael de Aguirre grant, dated October 22, 1833.
Defendant offered in evidence:
1. A certified, translated copy of the eleven-league grant to Miguel Rabago, consisting of: 1. Application to purchase eleven leagues of land on the Trinity river, dated November 23, 1828. 2. Concession, dated December 2, 1828. 3. Application for the land by Samuel M. Williams, designating the same on the right bank of the Brazos river, adjoining another tract of the same description for Don Rafael de Aguirre, within the colony of Messrs. Austin & Williams. 4. Consent of the empresarios. 5. Reference to the surveyor. 6. Field notes of Carbajal, who, among other descriptive calls, returns this tract as “bounded on the south by a tract which has been surveyed for Don Rafael de Aguirre; dated January 11, 1834.” 7. Order for title, dated same date as above. 8. Final title, in which the land is described, “the boundaries of which are set forth in the plat and field notes returned by the surveyor, Jose Maria Carbajal.”
2. A like copy of an eleven-league grant issued to Rafael de Aguirre and situated on the Brazos river. It contains: 1. Application of Samuel M. Williams, as attorney of Jose Maria de Aguirre, Rafael de Aguirre and Tomas Vega for a concession of eleven leagues each, to his constituents, dated city of Austin, October 14, 1830. 2. Copy of the concession that was granted as prayed for. 3. Application for the eleven leagues to Rafael de Aguirre by Samuel M. Williams, dated October 4, 1833, to be located on the Brazos river. 4. Reference to empresarios, Austin & Williams, October 5, 1833. 5. Consent of Williams to the location, October 5, 1833. 6. Return of surveyor, F. W. Johnson, with field notes of the land on the west bank of the Brazos river, giving metes and bounds, commencing a short distance below where the Bosque river empties into the Brazos. 7. Appointment of commissioner to issue title, May 2, 1832. 8. Final title to the land surveyed for Rafael de Aguirre, dated October 4, 1833, and signed by Luke Lesassier, the officer, and his witnesses of assistance, Robert Peebles and C. C. Givens.
3. A certified copy of a like title issued to Tomas de la Vega, containing all the preliminary papers as those just mentioned in the Aguirre title, except that it contains a testimonio of the concession, instead of a copy of it.
4. W. C. Walsh testified: I am commissioner of the general land office of Texas; the book that will be read from is an archive in said office.
5. X. B. De Bray testified: I am Spanish translator in the general land office. Book 29, from which I will read, belongs to my department, and is an archive of the office. I am shown a photographic copy of the original title for eleven leagues of land to Rafael de Aguirre, dated October 22, 1833. It is a true and correct reproduction of said original title, which is archived in this book 29.
6. Said photographic copy was then read in evidence, and was inserted...
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