Mardes v. Meyers

• Decision Date: 22 November 1894
• Citation: 28 S.W. 693
• Parties: MARDES et al. v. MEYERS et al.
• Court: Texas Court of Appeals

28 S.W. 693

MARDES et al. v. MEYERS et al.

Court of Civil Appeals of Texas.

November 22, 1894.

Appeal from district court, Polk county; L. B. Hightower, Judge.

Trespass to try title by Allen Mardes and others against J. M. Meyers and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Jas. E. Hill, D. A. Nunn, and Ingraham & Ratchn, for appellants. Holshousen & Feagin and J. R. Burnett, for appellees.

GARRETT, C. J.

This was an action of trespass to try title, brought by the appellants to recover of the appellees the Abner Mardes league of land situated in what is now Polk county. Plaintiffs are the heirs of Abner Mardes, the original grantee of said league. The defense is that Abner Mardes, by a deed executed November 20, 1837, conveyed the land to David Brown, under whom the defendants claim. This deed is attacked by the plaintiffs as a forgery, and its introduction in evidence in the court below was also objected to, for the reason that it was void for the want of a description of the land to be conveyed; also because it was not free from suspicion on account of alterations appearing on the face of the deed; the land was not in Nacogdoches county; and the name of the grantor did not appear in the granting clause. The deed was admitted in evidence, and upon the issue of forgery the jury found that it was genuine. Other questions arose on the trial which have been presented by the appellants in their brief. The following is a copy of the deed. We have underscored, to be italicized, such words as readily appear from an inspection of the original deed sent up with the transcript not to have been written with the same ink as the rest of the instrument: "Republick of Texas, County of Nacogdoches. This indenture, made this twentieth day of November, in the year of our Lord one thousand eight hundred and thirty-seven, by and between Abner Mardes, of the county of Liberty and republick afs., of the one part, and David Brown, of the county of San Augustine and republick afs., of the other part, witnesseth: That the said ____, for and in consideration of the sum of five hundred dollars current money of the republick afs., to him in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have this day granted, bargained, and sold, and by these presents do grant, bargain, sell, and convey, unto David Brown, his heirs and assigns, forever, all that tract or parcel of land lying and being situate in Nacogdoches county, having such shape, form, and landmarks as are set forth in the title of possession as given by Geo. A. Nixon, especial commissioner for Joseph Vehelin's colony, of which the said Mardes was a colonist. To have and hold the above-described land and premises unto the said David Brown, his heirs and assigns, forever, in fee simple. And the said Abner Mardes, for and in consideration of the premises aforesaid, do for himself, his heirs and assigns, covenant and agree to and with the said ____ to warrant, and by these presents do warrant, and forever defend, the right and title to said land and premises against the claim or claims of any person whatsoever lawfully claiming the same, or any part thereof. In testimony whereof, I have set my hand, affixed my seal, the day and year first hereinbefore written. Abner Mardes. Signed, sealed, and delivered in presence of Thos. H. Gardner, S. Eaton." We are of the opinion that the deed is sufficient, in connection with other proper evidence in aid thereof, to convey the league of land granted by the Mexican government to Abner Mardes. It purports to be an indenture between Abner Mardes, of the one part, and David Brown, of the other part. Abner Mardes covenants to warrant the title, and it is signed "Abner Mardes." The clerical omission of the name after "said" in the granting clause may be easily supplied by the rest of the deed, from which Abner Mardes clearly appears to be the grantor. In Stone v. Sledge (Tex. Sup.) 26 S. W. 1068, it nowhere appeared from the deed that Mrs. Stone was to join her husband in its execution. It appeared from the evidence in this case that, at the time the deed purported to have been executed, it was customary to fill out blanks in manuscript deeds previously prepared in making conveyances, and all of the words which appear to have been written in fresher or blacker ink than the rest of the deed are such as would be used in filling up the blanks in a general form previously prepared, and do not subject the deed to suspicion. The land conveyed is not described in the deed except by reference to "the title of possession as given by Geo. A. Nixon, especial commissioner for Joseph Vehelin's colony, of which the said Mardes was a colonist." If the "title of possession" referred to can be identified, it is proper to refer to it for a more definite description; and in order to identify it, the words "of which the said Mardes was a colonist" should not be rejected as mere description of the person...