Houston v. Blythe

• Decision Date: 11 December 1883
• Docket Number: Case No. 1097.
• Citation: 60 Tex. 506
• Parties: C. M. AND NANCY HOUSTON v. W. T. BLYTHE.
• Court: Texas Supreme Court

60 Tex. 506

C. M. AND NANCY HOUSTON

v.W. T. BLYTHE.

Case No. 1097.

Supreme Court of Texas.

Dec. 11, 1883.

ERROR from Hopkins. Tried below before the Hon. Green J. Clark.

This case was last before this court on an appeal by the present defendant in error, and was reversed.

The plaintiffs in error claimed that the land in controversy was granted by the state of Coahuila and Texas to Lovick P. Dikes, and attempted to make out title in Lovick P. Dikes, by introducing in evidence a certified translated copy, from the general land office, of a title granted him by George W. Smyth, commissioner. It showed that on the 15th September, 1835, upon the petition of Dikes, the commissioner ordered a survey to be made. That on the 11th day of November, 1835, the field notes of the survey were reported at Nacogdoches by the surveyor to the commissioner, and that on the same day, the 11th November, 1835, the commissioner, Smyth, granted the land described by the field notes, by an order by him signed and formally attested by subscribing witnesses, to Lovick P. Dikes. This decree was immediately followed by a title to Lovick P. Dikes, signed by the same commissioner and the same witnesses, and complete in all respects, except the date was written as follows: “Given at the town of Nacogdoches, the ___________, A. D. 1835.”

The defendant's assault on this title was that it was granted after the closing of the land office on the 13th of November, 1835.

The evidence that he offered to prove this vice in the title was the testimonio copy, or second original of the title, which had the blank filled in the title with the date 15th of November, 1835.

This paper bears on its face the appearance of alterations and interlineations, and was attacked as a forgery by the sworn statements of plaintiffs and the depositions of many witnesses.

Blythe claimed the land by virtue of the location of the headright certificate of Robert Collier.

Numerous witnesses testified on behalf of defendants that in their opinion the signature of Geo. W. Smyth affixed to this testimonio was his genuine signature, and the most of these witnesses show that they are acquainted with Smyth's handwriting; and some of them say that he died in 1866. On the other hand fully as many witnesses swore that the signature, in their opinion, was not in the handwriting of Geo. W. Smyth.

The testimonio is signed by A. McLaughlin and B. F. Wright, as attesting witnesses. The attesting witnesses were not called, and there was no evidence in the record anywhere showing them to be dead or in any manner accounting for their absence.

The testimonio, which is found on file for the inspection of the supreme court, is much mutilated, but in various portions of it are found changes made by barado, or barring off an original word and interlining another. This occurs in the names of parties in the body of the instrument. At the close of the instrument, and before the signatures thereto, appear notes of emendation, seeking to validate the changes made by invalidating and revealing the words first written, and mentioning and validating the words afterwards interlined. This attempted validation of the changes in the testimonio is in a different and darker ink than the body of the title and the signatures of assisting witnesses; also the signature of Geo. W. Smyth, the commissioner, and the words interlined, are of darker ink than the writing in the instrument and the signatures of assisting witnesses. The notes of emendation at the close of the testimonio are not found in the land office protocol. These facts doubtless were known to counsel, but seem not to have been referred to in briefs. Photographs of the original protocol on file in the general land office were in evidence, but there was nothing showing that they were exact reproductions of the original--they were smaller in size.

On the trial the defendant excepted to the introduction of the testimonio in evidence:

1. Because it was attacked as a forgery.

2. It was in a foreign language.

3. Because its execution was not proved by the assisting witnesses, nor their absence accounted for.

5. Because the erasures and interlineations on the paper were not accounted for or explained.

6. It was not shown to be a true copy of the original protocol.

7. Because its execution had not been proved.

Exceptions overruled.

A witness, Weaver, was examined as an expert to show by comparison of the signature of Geo. W. Smyth in the protocol photograph as it there appeared, and in the testimonio, that the two signatures were made by the same man. This was done after defendants had read to the court the deposition of W. C. Walsh, the commissioner of the land office, to which was attached the photographic copy of the protocol as an exhibit. To this the plaintiff objected, because the photographic copy did not purport to contain the original signature of Geo. W. Smyth, but was only a copy, and there was nothing to show that the photograph was, as to size, etc., a reproduction of the original. The objections were overruled.

A witness, Archibald Hotchkiss, had given evidence by deposition on a former trial. The plaintiff offered the testimony then taken as embodied in a former statement of facts signed by counsel for both sides, in connection with evidence that the deposition then taken was lost, and that he could not at the trial testify as to papers as on a former examination, on account of having lost his eye-sight. The court excluded the evidence, holding that the only way it could be used was to substitute the lost deposition in the manner allowed by the statute. Exceptions were taken to these rulings.

Whiting, the Spanish translator in the general land office, and Brown, the former translator, were examined by deposition as witnesses--both of whom testified that they spoke and wrote the Spanish language, and that they attach to their depositions a translation of the original grant in Spanish to Lovick P. Dikes. To the reading of that translation objection was made and overruled. To both translations were attached the certificate of the witness of its correctness.

Sam J. Hunter, A. A. Henderson and John L. Henry, for plaintiff in error.

L. D. King, for defendant in error, cited: Jones v. Borden, 5 Tex., 412; Board Land Com'rs v. Walling, Dal., 524; Jones v. Menard, 1 Tex., 771;Kemper v. Corporation of Victoria, 3 Tex., 159, and authorities therein cited; McMullan v. Hodge, 5 Tex., 86;Hardy v. De Leon, 5 Tex., 211;Kilpatrick et al. v. Sisneros et al., 23 Tex., 114.

WEST, ASSOCIATE JUSTICE.

This case has already been twice before this court. See Ury v. Houston, 36 Tex., 265, and Blythe v. Houston, 46 Tex., 65.

Time will not now permit of an extended examination, at length, of all of the numerous errors complained of, or allow a discussion, or even a partial consideration, of the many propositions announced and presented as growing out of the errors assigned.

The court ruled correctly in allowing the evidence, and the accompanying translations, of both the witnesses Whiting and Brown to be read to the jury.

The action, however, of the judge on the question of the introduction in evidence of the testimonio of the L. P. Dikes grant (the genuineness and validity of that instrument being directly and vigorously attacked) requires more serious consideration.

The court, it is true, as appears from the concluding paragraph of the fourth bill of exceptions, when the plaintiffs in error objected to the introduction in evidence, before the jury, of the testimonio in the Spanish language, did not permit it to be read until a translation of it had been produced and a number of the depositions, taken by the defendant in error, concerning its character, execution and genuineness, now found in the record, were read to the jury.

We are of the opinion that this action of the court in relation to the introduction in evidence of this instrument, though in the main correct and proper, was not entirely so under the special facts of the particular case now under consideration.

The instrument in question was attacked as a forgery; there was also raised to it, when offered in evidence, another specific objection to its introduction, based on the ground that its execution had in no form been proved, or attempted to be proved, by the evidence of the assisting witnesses to it, or their absence in any manner accounted for.

The signature of the officer who executed the instrument, if it was genuine, was duly and formally attested by two assisting witnesses, A. Laughlin and B. F. Wright. The objection was specially taken, as we have seen, at the time when it was offered to its admissibility, that its execution should in some manner be proved by these two witnesses, who had been specially selected by the maker of the deed for that purpose, or their absence satisfactorily explained. The death, if they in fact were dead, or the causes of the non-production in court of one or both these witnesses, are in no manner accounted for, nor were their existence or handwriting proved or attempted in any manner whatever to be proved.

After so great a lapse of time as has transpired in this case, no very great deal of evidence should or would be required by the court as to the death or non-production of such assisting witnesses; still, when specially demanded, the best evidence of that fact the nature of the case, under all the circumstances, would admit of should be required. Some evidence of some kind, at least, pertinent to that matter, should be produced when demanded. Their existence, age, occupation, their place of residence, when last known to be alive, some evidence as to their handwriting, or other like matters, it would seem, under the facts disclosed in evidence in this case, could be proved, to some extent at least, by some of their old neighbors or acquaintances.

This matter, together with proof as to the death, and the signature of the officer executing the...