Miller v. Brownson
| Decision Date | 01 January 1879 |
| Citation | 50 Tex. 583 |
| Parties | GEORGE MILLER v. J. M. BROWNSON. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Victoria. Tried below before the Hon. H. Clay Pleasants.
October 13, 1877, Brownson brought an action of trespass to try title against Miller for one-third of a league of land patented March 15, 1877, to plaintiff, situated in Victoria county.
Miller pleaded not guilty; limitation of five and ten years; suggested possession in good faith and valuable improvements, and that the land was not part of the public domain at the time plaintiff's location was made, nor at the time his patent issued.
On the trial plaintiff exhibited in evidence a patent to himself for the land, of date March 15, 1877.
The case made by defendant was as follows:
A certified copy from the office of the county clerk of Victoria county, which showed that on July 26, 1838, the board of land commissioners of Victoria county issued to Michael Devine, who was a single man, a certificate for one-third of a league of land; that his claim was proven by Ebenezer Jones and W. P. Brashear; the date of his emigration was July, 1836, and the number of his certificate 89.
A certified copy from the records of the county surveyor of Victoria county of the field-notes of a survey for one-third of a league of land, made for Michael Devine by Ed. Linn, district surveyor, on November 5, 1839, by virtue of certificate number 89, second class, issued to Michael Devine by the board of land commissioners for Victoria county. The land is the same sued for.
J. J. Groos, commissioner of the general land office, testified that
The defendant, after proving the existence and loss of the original certificate granted by the board of land commissioners of Victoria county to Michael Devine, and that the land office lists of the certificates which had been recommended as genuine by the travelling board, did not contain the M. Devine certificate, offered John J. Linn as a witness, by whom they proposed to prove that “he knew Michael Devine, the party to whom the certificate for one-third of a league of land had been granted; that he (Devine) was, in 1836, a citizen of Victoria county, and that he had known him from that time until some time in 1842, when he was drowned, which was very shortly after the board acted on his certificate; that he (the witness) was present when the travelling board held their meetings in Victoria, and heard the evidence given before them when said board were deliberating whether to recommend the certificate or not; and that after hearing the evidence said board did decide to recommend said certificate as valid and genuine.” The evidence was objected to, because the same was an attempt to contradict a record and was immaterial. Said objection was sustained by the court and the evidence excluded.
Defendant Miller then read in evidence warranty deeds to himself from John Guildeman, dated July and November, 1851, and duly recorded, for the land, and showed continuous and uninterrupted possession and use, and payment of taxes on the land since 1852; that the improvements made by defendant on the land were worth from $1,500 to $2,500, and the land worth from one to two dollars per acre without improvements; that defendant had paid a valuable consideration for the land; that there never had been any claim made to the land by any one until Brownson located it, and that Michael Devine was a citizen of Victoria from 1836 to 1842.
Plaintiff in rebuttal read from the record book of deeds of Victoria county a tax title, a deed from P. A. Pridham, assessor and collector, for the sum of $3, taxes assessed on the Michael Devine one-third of a league, and levied for 1849, and sold January 23, 1850, to Charles Guildeman, for the land.
As a predicate for reading the record, it appears by Miller's bill of exceptions that after he had closed his case and the plaintiff was introducing rebutting evidence,--the appellant having deraigned his title no further back than to John Guildeman, and disclaiming any connection between Guildeman and Devine, but relying upon his title by limitation, in connection with his proof of the State having parted with title prior to the beginning of plaintiff's title, and upon the presumption of a grant upon all the facts in proof,--the plaintiff offered in evidence the record of the deed, to which defendant objected, because no foundation had been laid for its introduction.
Whereupon plaintiff proved by A. B. Peticolas, attorney for defendant, (over defendant's objection,) that he had received of defendant a tax deed from Pridham to Guildeman for the Devine tract, and had, on the morning of the beginning of this trial, been asked to produce it; that he did not know whether the deed offered from the records was the same he had in his possession, as he had never compared them, and, not having intended to use the deed, had not examined it particularly. He had mislaid the original. Upon this the deed was read by plaintiff from the records.
Fisher, clerk in the land office, testified that
A bill of exceptions shows that after the testimony was all in, upon motion of the plaintiff, defendant's paper title, his proof of the issuance and location of the M. Devine certificate, and his evidence of twenty-five years' continuous possession, of his purchase in good faith and for a valuable consideration, and all his evidence, in so far as the same was offered to show title or to raise a presumption of a grant from the State, and in so far as it was offered for any other purpose than to show adverse possession in good faith,--was excluded.
Defendant objected to this ruling, because the question whether a grant from the government could be presumed was a question of fact and not of law alone, and must be determined by a jury; and also because whether defendant had title by possession and under his recorded deeds, was also a question of fact to be found by a jury.
The court instructed the jury to find for the plaintiff the land and rents, withdrawing from the jury the questions of possession in good faith and value of improvements.
Objections were taken to the charge and counter-charges asked by the defendant, which were refused.
Verdict and judgment for plaintiff for the land and $50 damages.
The defendant appealed.
A. B. Peticolas, for appellant.
I. When, in a suit of trespass to try title, a direct issue is made by the defendant as to whether or not the land was public domain when patented to the plaintiff, and twenty-five years' peaceable possession is shown by defendant, and other facts, as in this case, in such a case the records of the County Court or of the general land office are not the only evidence admissible to show that a certificate had been recommended as genuine by the travelling board, when the certificate itself is lost. (Graves v. White, 13 Tex., 126;Foster v. Wells, 4 Tex., 101; 1 Mart., (La., N. S.,) 442.)
II. When the purpose of parol evidence sought to be introduced is not to contradict a record, but to supply an omission in the record, it is admissible. (Noble v. Shearer, 6 Ohio, 426.)
III. The record books of the County Court are not admissible as evidence of the contents of a deed therein recorded unless a proper foundation be laid for their introduction. (1 Greenl. Ev., secs. 560, 562.)
IV. The court erred in not permitting the jury to pass upon the question of the presumption of a grant from the State, and in excluding from the jury defendant's evidence of title and length of possession.
The question whether a grant from the State may be presumed is always a question of fact for the jury, where there is any evidence conducing to raise the presumption; and in no case is it a conclusive presumption of law that the State has not parted with its title. (Taylor v. Watkins, 26 Tex., 698;Grimes v. Bastrop, 26 Tex., 314;Hill v. Spear, 48 Tex., 583.)
V. The certificate issued to Michael Devine being a certificate of the second class, and the evidence showing it was not fraudulent, it was not within the purview of the law to detect fraudulent certificates, that law being only applicable to fraudulent certificates and not to second-class certificates.
The board of land commissioners issued to M. Devine, who was a single man, a certificate for one-third of a league of land. His claim was proved by Ebenezer Jones and W. P. Brashear. He emigrated to Texas in July, 1836. Mr. Linn said he knew Michael Devine from 1836 to 1842, and that he was a citizen of Victoria county. The land was located and surveyed while Devine lived there. (Paschal's Dig., art. 4211; Peacock v. Hammond, 6 Tex., 544;Morris v. Byers, 14 Tex., 279.) All the cases in which the law has been applied, none of which are...
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