Hickman v. Gillum
| Decision Date | 10 June 1886 |
| Citation | 1 S.W. 339 |
| Parties | HICKMAN v. GILLUM and others. |
| Court | Texas Supreme Court |
Coopwood, Chandler & McGregor, for appellant, John L. Hickman. Leake & Henry, for appellees, Henry Gillum and others.
This suit was brought by Hickman to recover of Gillum and others a tract of land originally granted to one Maria Josefa Delgardo by William H. Steele, commissioner appointed to issue titles to colonists under the Nashville Company's colonization contract. Each party claimed under a person bearing the name of Maria Josefa Delgardo, the plaintiff showing title under a person of that name, who was at the date of the grant the wife of one Francisca Martinez, and the defendants showing title under a person of the same name, who at the date of the grant was the widow of one Carbelo. To which of these women the grant was made was really the only question before the court and jury upon trial of the cause below. The plaintiff, however, objected to the introduction by the defendants of a certified copy from the county court of Bexar county of the will of Maria Josefa Delgardo, accompanied by a certified copy of the proceedings of the court in which the will had been probated. This was one of the muniments of the title of defendants, and, in addition to some objections to it which do not require consideration, it was urged that the will was detached from the proceeding of the court before whom it was proven, and that it had not been filed among the papers of the cause, and three days' notice thereof given, nor was it shown why the original was not produced. The record does not show that the will was thus detached, and, if so, how or for what reason this was done. The will might, under some circumstances, properly go to the jury, though temporarily severed from the other papers. So far as the record shows, it seems to have been regularly probated and recorded in Bexar county, and a certified copy registered in Milam county, where the land lay. There was no necessity to account for the original. The law accounted for it, by requiring that it should be kept on file in the county court of Bexar county, and made a certified copy from the clerk of that court of equal dignity, as evidence, with the original. P. D. 5372; Rev. St. 4875, 4876. The requirements of article 2257, Rev. St., in reference to instruments permitted and required by law to be recorded, do not apply to such a case.
All the bills of exception saved by the plaintiff to the introduction of other testimony by the defendants may be classified and disposed of in a few words.
All objections that were raised to the statements of witnesses as to the contents of papers were either untenable, because the papers were lost or mislaid, or were removed by the production of the papers themselves in evidence. Thus, the receipts for taxes and government dues which were handed to Lee by Maria Josefa Delgardo, and by him delivered to Gillespie, and which afterwards came into the possession of Upshaw, were shown to have been mislaid, so that upon diligent search they could not be found. It was also fully shown by other evidence, not contradicted, that all taxes upon the land had been paid by this Maria Josefa Delgardo, and those claiming under her. The power of attorney from her to Smith, as also the one from her daughter Manuella and husband to Upshaw, and the receipt and letter of Upshaw to Sayles, were all put in evidence after proper proof of handwriting; also the particular deed signed by Upshaw as attorney for Manuella and her husband, and by Lee and his wife.
As to all objections made to the relevancy of testimony to prove title in the Maria Josefa Delgardo under whom defendants claim, it is fully shown by the bills of exception that this testimony was rejected by the district judge as evidence of title, but was permitted to go to the jury only as evidence of an assertion of claim to the land by the defendants, and those under whom they claimed, and of the exercise of ownership over it by them. While the fact that a party asserted that land belonged to her would be no evidence of title, yet it would be the best possible evidence that she claimed it. And when, as in this case, the grantee of the land has a name which is borne by two persons, the fact that one of these has claimed the land continuously from the date of the grant, and exercised acts of ownership for a long series of years, and the other has done nothing of the sort during the whole of the time, affords strong evidence...
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