M'Camant v. Roberts

• Decision Date: 03 June 1886
• Parties: McCAMANT and others v. ROBERTS.
• Court: Texas Supreme Court

Page 260

1 S.W. 260

McCAMANT and others v. ROBERTS.

Supreme Court of Texas.

June 3, 1886.

Appeal from Jones county.

Trespass to establish title to land, plaintiff claiming through an administrator's sale of a land certificate, and also through a judgment assuming to declare who were the heirs of the deceased locator; defendants claiming from the original patentee direct. Judgment for plaintiff, and appeal therefrom by defendants.

Charles I. Evans, for appellants, A. S. McCamant and others. John Bowyer, for appellee, M. D. Roberts.

STAYTON, J.

The land in controversy was patented to William T. Evans on December 11, 1861, and through a person of that name, who testified that he was the person to whom the certificate issued on which the land was granted, the appellants claim, by a deed executed April 23, 1883. The appellee claims the land through a deed made to him by W. R. Baker, dated October 11, 1882. Baker claimed to be the owner of the land certificate on which the grant was made, through conveyances made by several persons down to himself, all of which, except the conveyance claimed to have been made by the original grantee to one Charles Chamberlain, were properly admitted in evidence. It was claimed that William T. Evans, the original grantee, conveyed the certificate, which was for his head-right, — one-third of a league, — to Charles Chamberlain by a writing dated June 21, 1841; but the instrument evidencing the conveyance was not produced, nor was there any direct evidence of the fact that it was ever executed. The William T. Evans who testified in the cause, through his deposition, formerly taken to perpetuate his evidence, in addition to stating that he was the identical person to whom the land certificate and patent issued, denied that he had ever sold the land certificate to any person. There is much evidence going to show that W. R. Baker, since some time in the year 1851, asserted claim to the duplicate land certificate through a purchase made at a sale by the administrator of the estate of Charles Chamberlain; that he located the land, paid taxes on it, and claimed it until he sold to the appellee. There is also some evidence tending to show that the person who testified and claimed to be W. T. Evans, the original grantee, caused the land to be located; that he paid taxes on it for a few years, and claimed it. There was no effort made to prove that head-right or other land certificate issued to more than one person by the name of William T. Evans from the board of land commissioners for Harrisburg county in the year 1838, or at any other time. The certificate on which the land was granted, (though a duplicate,) issued in that year and from that board. There was no offer made to prove the actual execution of a conveyance of the land certificate by William T. Evans to Charles Chamberlain, but there was evidence that an instrument which had been lost, purporting to be such a conveyance, did exist as early as the year 1851. The evidence bearing on the question of identity of the William T. Evans who conveyed the land to the appellants, or those through whom they claim, and the person to whom the land was granted, other than the evidence of the person who so conveyed, who testified by deposition on June 12, 1883, need not be stated.

From the facts thus stated it will be seen that the vital question in the case was, did the William T. Evans to whom the land was patented sell the land certificate to Charles Chamberlain? To make that proof in the case, the plaintiff, over the objection of the appellants, was permitted to introduce in evidence a judgment rendered in the district court for Shackelford county on February 21, 1882, in a suit instituted by W. R. Baker against the unknown heirs of William T. Evans to remove cloud from the title. That judgment recites that the unknown heirs of W. T. Evans were cited by publication, and that counsel were appointed by the court to represent them; and it declares that the land certificate under which the land was granted, was conveyed by William T. Evans to Charles Chamberlain by a written instrument dated June 11, 1841, acknowledged by Evans before a proper officer. The judgment then proceeds to establish that instrument, and declares that the judgment thus rendered, when recorded, shall have all the effect which the original instrument could have, and that it "may be used in evidence in any of the courts of this state with like effect as the original." This ruling of the court is assigned as error.

It is evident that neither the appellants, nor any person through whom they claim, were parties to the suit in which that judgment was rendered. As to those it was res inter alios acta, and could have no effect whatever. The purpose for which a judgment is sought to be introduced, often and most...