Howard v. Colquhoun

• Citation: 28 Tex. 134
• Parties: PHILIP HOWARD v. LUDOVIC COLQUHOUN.
• Decision Date: 31 October 1866
• Court: Texas Supreme Court

28 Tex. 134

PHILIP HOWARD

v.LUDOVIC COLQUHOUN.

Supreme Court of Texas.

October, 1866.

The court below instructed the jury to “look to all the testimony, and to the fact that some of the witnesses had been impeached, in order to decide whether or not they should believe those witnesses as to any facts that the defendants are required to establish, and, if they believe them, how far;” which instruction is assigned for error as a charge upon the weight of evidence. Held, that, although the charge might have been couched in more appropriate language, its scope and meaning imported only that the character of the witnesses had been attacked, and that it was for the jury to judge of the weight to which their testimony was entitled, in which there was no error.

An assignment that the court below erred in refusing the thirteen charges asked by the appellant, without pointing out the specific errors complained of, is too general and comprehensive in its terms, and might be disregarded by this court. Pas. Dig. art. 1591, note 618.

Before a grant of land can be said to have been “issued” or “made,” the name of the grantee must have been inserted in it.

A deed was executed in 1835 before a judge of the second instance and two instrumental witnesses. In 1839, the judge appeared before the clerk of the county court of the county comprising the land, and acknowledged his own and proved the maker's signature to the deed, upon which proof the deed was admitted to record. This court is of opinion that this was a good registration at that time, and that it was not necessary that the deed should afterwards be registered in a new county subsequently formed, within which the land was comprised. Pas. Dig. art. 3716, note 840; and art. 4982, note 1091; 18 Tex. 149.

See the opinion in this case as to whether a grant from the state, issued by proper authority and in due form, can be impeached by a party other than the state for fraud in the issuance of such grant. 21 Tex. 722;22 Tex. 155.

Mere discrepancies and apparent differences in the color of the ink and in the penmanship of a grant of twenty-five years' standing, issued by a colony commissioner to whom the land was subsequently conveyed by the grantee, are not sufficient to justify the inference that the grant was fraudulently issued. See the opinion for the conclusions properly deducible from such circumstances.

Oral testimony offered to impeach for fraud a grant issued a quarter of a century ago, when such testimony conflicts with the written memorials of the grant, should be received with great caution and close scrutiny. 14 Tex. 69.

The commissioner of a colony was the exclusive judge of the qualifications of a colonist, and the issuance of a grant by the commissioner is conclusive of the right of the colonist to the quantity of land granted him. If the grant were for a league, it is not competent to impeach it by proof that the colonist was a single man, and as such was only entitled to a quarter of a league. Such questions are res adjudicata, the state not being a party. Pas. Dig. art. 576, note 359; 10 Tex. 503;15 Tex. 590;21 Tex. 722.

Where the pleadings presented an issue of fraud, and the court instructed the jury that if such fraud existed the verdict should be found for the party pleading it, and the jury found that there was no fraud, this court will not revise the verdict.

APPEAL from McLennan. The case was tried before Hon. JOHN GREGG, one of the district judges.

The facts are fully shown in the opinion, but it seems desirable that the pleadings should be more fully set forth.

The appellee, Colquhoun, filed his petition on the 28th of March, 1855, against James and Isaac Jackson, then in possession of the league of land in controversy, for the recovery of the league. He alleged that the land was granted to William Fisher, as a colonist in the Nashville, or Robertson's colony, but did not set forth his chain of title in his petition. For the boundaries of Robertson's colony, see Pas. Dig. art. 259, note 301. In his evidence, however, he deraigned title from Fisher through W. H. Steele, the commissioner of Robertson's colony, to himself. On the 16th May, 1855, W. L. Scales filed his plea and answer, claiming to be the owner of the league in litigation, and the landlord of the defendants. On the 16th of April, 1856, the plaintiff filed his amended petition, making Phil Howard a party defendant.

On the 20th of October, 1857, the defendant, Scales, amended his answer, and set up the plea of innocent purchaser without notice of plaintiff's adverse title, and alleges that William H. Steele, at the time he issued title to Fisher, was the commissioner of Robertson colony; that the plaintiff pretended to deraign title from the said Steele by a pretended deed from Fisher to Steele; that he pretended to purchase from Fisher before he issued the grant; that it was not issued for Fisher, but in fact for Steele; that Fisher had been and was, up to the date of issuing the grant, a single man, and only entitled under the colonization law to one-quarter of a league; that Steele was cognizant of these facts, and consequently the grant was void. On the 16th March, 1858, the defendants amended their answer, and alleged that they purchased and paid for the land in controversy without actual or constructive notice of the plaintiff's claim or title.

On the 16th March, 1858, the defendant (Howard) amended his answer, and claimed one hundred and sixty acres of this land as a pre-emptionist, and further alleged that Steele was the commissioner, and purchased the land from Fisher before he issued the grant; that Fisher was a single man, and entitled to one-fourth of a league; that Steele knew it, and that the grant when issued was for Steele's benefit, and not for Fisher's.

On the 21st September, 1858, they filed an amended answer, and alleged that Steele purchased Fisher's right to one-fourth of a league of land, knowing that he was a single man and not entitled to more; that he purchased before the grant issued; that when he did issue the grant, he fraudulently antedated it to make it appear that the grant issued before he purchased from Fisher, and for the purpose of evading the law prohibiting him from purchasing lands from the colonists before the issuance of their titles by him as commissioner; that if the plaintiff had any title, he acquired it with a full knowledge of the fraud therein charged upon Steele, and without any consideration; therefore the plaintiff's pretended title was null and void.

On the 22d September, 1858, the defendants filed an amended answer, alleging that Fisher, up to the date of the revolution, was a minor under the age of twenty-one years, a single man, living with his mother and other relations, and not entitled to any lands as a colonist; that he lived in Austin's old colony; that Steele knew all this, and that he fraudulently caused Fisher to come into Robertson's colony, and claim one-fourth of a league; that no empresario ever ordered a survey to be made for Fisher; that he never petitioned for his land; that Steele purchased his claim to one-fourth of a league before he issued the grant; that he ante-dated the grant and fraudulently issued it for one league; that the plaintiff took it with a full knowledge of the fraud alleged, and for the purpose of aiding and abetting Steele in perpetrating the fraud; that he never paid any consideration for the land.

On the 23d of April, 1859, the defendants amended again, and alleged that, if the grant itself was not ante-dated, it was signed by Steele and the witnesses, or a part of them, and the name of the grantee left blank, and that the name of the grantee (Fisher) was inserted after the date of the pretended deed from Fisher to Steele for one-fourth of a league, that being all that Fisher as colonist could claim, and that Steele agreed, as part consideration for said land so pretended to have been purchased, to pay the government fees, etc.

So that the issues plead and on which the case turned were: I. That the grant on which the plaintiff claimed was void, because the grantee was not the head of a family, but a single man, and was therefore not entitled to a league, but at most to a third of a league, under the colonization law. Pas. Dig. arts. 514, 565, 576, notes 356, 359. II. That the grantee could not take as a colonist, because he was not domiciliated in Robertson's but in Austin's colony, and had not presented himself as the head of a family. Pas. Dig. art. 580. III. That Steele, the commissioner appointed to extend the titles in this colony, was cognizant of the fraud, participated in it, and in fact, perpetrated it, by issuing the title for a pretended colonist, but in trust for himself. Pas. Dig. art. 611, note 369.F. W. Chandler, for appellant, filed a printed argument, which first gave the foregoing history of the pleadings, and next insisted that the pleadings for defendants were proved, and that the facts proved should defeat the recovery.

He insisted, 1. The deed from Fisher to Steele itself proves that Fisher did not sign it; the name of Fisher appears on the instrument, not as Fisher's signature, but written, as is usual for a party who cannot write, to make his cross mark, and there is no mark visible, nor any evidence that he ever made any mark.

The affidavit of J. G. W. Pierson, attesting his own signature, with the certificate of the clerk of Milam county, that he made oath in due form of law that the signature of the signer, etc., does not prove a fact which the deed itself disproves. This deed was never authenticated, as required by any of our registration laws, so as to entitle it to be read in evidence.

If it be contended that the affidavit of E. S. C. Robertson proved up this deed and entitled it to be read in evidence, then we say the paper offered and read in evidence as the deed of Fisher flatly contradicts so much of Robertson's affidavit as goes to...