Pilcher v. Kirk

• Decision Date: 13 October 1883
• Docket Number: Case No. 1223-4638.
• Parties: SIDNEY PILCHER v. A. L. KIRK ET AL.
• Court: Texas Supreme Court

60 Tex. 162

SIDNEY PILCHER

v.A. L. KIRK ET AL.

Case No. 1223-4638.

Supreme Court of Texas.

Oct. 13, 1883.

APPEAL from Erath. Tried below before Wm. Kennedy, Esq., special judge.

Thomas Rock, for appellant.

No briefs on file for appellee.

STAYTON, ASSOCIATE JUSTICE.

The record manifests with all reasonable certainty that the land in controversy was granted to John Gaylor, who lived in Liberty county, Texas, and that he died prior to the year A. D. 1850.

It shows also that John Gaylor came to Texas and settled in Liberty county as early as the year 1833 or 1834; that he was then a man advanced in life and without family with him. A person of the same name, and answering the same general description, is shown to have resided in Florida but a short time before John Gaylor was found in Liberty county, and to have left there to go to Texas; such was the understanding of his family, consisting of his wife and several sons and daughters, none of whom accompanied him to Texas or rejoined him there. The appellant is shown to be the sole surviving child of a daughter of that John Gaylor, said daughter having died before the institution of this suit. It is shown that several other children of John Gaylor died prior to the institution of this suit and they left no issue; and there is some testimony tending to show that the appellant is the sole heir surviving of John Gaylor. This testimony, however, is unsatisfactory and of such character as indicates that more direct evidence upon this subject might be procured; a matter, however, in the view we take of the case, unimportant in its present consideration.

John Gaylor, in Texas, seems to have led a solitary life, and none of the witnesses who knew him in Texas seem to have known his past history, nor do those who knew him in Florida speak of the causes which led him to leave his family and come to Texas. Such a life was consistent with the abandonment of the family, from whatever cause it may have resulted. Taken altogether, the evidence, unrebutted, is sufficient to show with all reasonable certainty that the appellant is an heir of the John Gaylor to whom the land in controversy was granted. There is nothing in the record rebutting the evidence offered by the plaintiff, or tending to show that the John Gaylor to whom the land in controversy was granted was another and different person than the John Gaylor who was the grandfather of the appellant.

To meet the case made by the appellant the defendants show that they claim through a deed purporting to be made in 1870 in Washington county by a man calling himself John Gaylor, and representing himself to be the man to whom the grant was made. With this man no witness who testified seemed to be acquainted. His testimony was not produced nor was his place of residence shown, further than that one witness testified that in 1857 he saw in Washington county a man who was called John Gaylor.

That the man who made the deed in 1870...