Robertson v. Du Bose

• Decision Date: 04 February 1890
• Citation: 13 S.W. 300
• Parties: ROBERTSON <I>v.</I> DU BOSE.
• Court: Texas Supreme Court

13 S.W. 300

ROBERTSONv.

DU BOSE.

Supreme Court of Texas.

February 4, 1890.

Appeal from district court, Angelina county; L. B. HIGHTOWER, Judge.

W. J. Townsend and Robertson & Williams, for appellant. J. D. Gann, for appellee.

HENRY, J.

This was an action of trespass to try title, instituted by appellant to recover one-third of a league of land patented to Caleb Holloway. The defendant pleaded "not guilty." Appellee filed an affidavit charging that a deed for the land from Caleb Holloway to appellant was a forgery. Appellant, by a supplemental petition, pleaded that defendant's equitable title was a stale claim. A certificate was issued in favor of Caleb Holloway by the district court of San Augustine county on the 22d day of October, 1842. It was located on the land in controversy, which was patented to Caleb Holloway on the 3d day of May, 1873. On the 5th day of July, 1887, said Holloway conveyed the land to James H. Robertson, the appellant. Appellee claimed the land under conveyances to him by the executors and heirs of Jesse Walling; to whom, he contends, the equitable title to the land certificate was conveyed by the following instrument, which we copy from the brief of appellant: "Republic of Texas, county of Nacogdoches, this, the 4th day of February, 1840. Be it none [known] that I, Caleb Holloway, has this day sold to Jesse Walling all of the one-third of a league of land which was located by said Walling in the year thirty-five, in my one [own] name, now ling [lying] and being in Harris county, about ten miles from the lake, and joins a location made at the same time for Daniel Holloway and other, corners branded C. H.; & the sale is for and in consideration of the sum of five thousand dollars, the receipt of which is hereby acknowledged, and declared to be good and valid to said Walling, his heirs and assigns, forever, from myself and heirs, executors, & forever, in fee-simple, &, the said land not being patented by this government, I will, if necessary, make further title as soon as said Walling obtains a patent in my name for said land. Said Walling is to pay all expenses to the government, & is to have full possession of the land and premises for the time being, & all of which is agreed to before signing and delivering these presents, day and date first written." Signed, "CALEB HOLLOWAY," and proved for record by one of its two subscribing witnesses. It is indorsed: "Filed, in G. L. O., Dec. 13-59. Refiled, Oct. 24-70." Plaintiff proved the execution of the deed of Caleb Holloway to him by the depositions of the subscribing witnesses. No evidence in support of his plea of non est factum was offered by defendant. No evidence was offered tending to show that the Caleb Holloway who conveyed the land to plaintiff was not the identical person to whom it was patented.

Upon this branch of the case the court charged the jury as follows: "The defendant, Du Bose, attacks the genuineness of said deed, purporting to be the act and deed of said Caleb Holloway, as a forgery, which throws the burden of proof upon the plaintiff to establish said deed as the genuine act and deed of the Caleb Holloway to whom said land was patented; and, unless the plaintiff has so shown the said deed to be the act and deed of the identical Caleb Holloway in whose name the patent to the land in dispute issued, he cannot recover in this suit. He must, if he recovers at all, recover upon the strength of his own title to the land in question." In another part of the charge, upon the same issue, the court used the language: "If you believe that the deed purporting to be the act of Caleb Holloway, conveying the land sued for to James H. Robertson, is the genuine act and deed of Caleb Holloway, the same person in whose name the patent to said land issued, then the plaintiff has established a legal title," etc.

Under this state of the case, it is contended that the court erred in submitting at all the question of forgery to the jury, and also in charging as if any question of identity existed. We think both objections are well taken, and that they require a reversal of the case. In the case of Chamblee v. Tarbox, 27 Tex. 144, this court said that similarity of name alone "is ordinarily sufficient evidence of identity of a purchaser in a chain of conveyance." In the absence of evidence casting doubt upon the identity of a party to a conveyance of land, we think it ought to be held sufficient in every case, and the jury, if instructed upon the subject at all, ought to be told so. In the case of Cox v. Cock, 59 Tex. 524, speaking of the effect of such an affidavit as the one filed by defendant in this case, this court said: "When the proper affidavit is filed * * * attacking the deed offered in evidence as a forgery, such a deed cannot be received in evidence without the usual proof of its execution; but when such proper proof is made, * * * it is not error to allow the deed to go to the jury as prima facie a genuine instrument. The impeaching affidavit has served its purpose. It has compelled the party claiming under the deed to prove its execution in accordance with the rules of evidence, and thus remove the suspicion cast on it by the affidavit of forgery. It throws upon the shoulders of the party offering the deed the burden of proving its execution in accordance with the rules of common law. * * * If the party impeaching the deed desires to do so, he is at liberty to proceed to sustain, by any lawful testimony, his plea of non est factum. If he introduces no proof whatever, (the affidavit not being evidence,) and the opposing party proves the making of the deed in accordance with some one of the modes prescribed by the common law, the genuineness of the deed is established. The jury, in the absence of all proof sustaining the plea of non est factum, could not find otherwise." In this case they should have been so instructed.

In view of another trial, it is proper for us to dispose of a number of other questions presented by appellant's assignments of error. It is urged that the court erred in permitting the defendant to read in evidence a copy of the above-described conveyance from Caleb Holloway to Jesse Walling. The original instrument was filed in the general land-office on the 13th day of December, 1859, already properly authenticated as a deed by one of the subscribing witnesses. On that point no question is made. A copy of the instrument, and its authentication, duly certified by the commissioner of the general land-office, was recorded in the deed records of Angelina county on the 22d day of October, 1883. It is contended that said paper is not a duly-recorded instrument; that it does not relate to the land in controversy, but purports to convey by metes and bounds an entirely different tract of land, situated in a different county, and not shown to be connected with the land in controversy; that on February 4, 1840, when said instrument was executed, Holloway did not have a right, under the law, to obtain the certificate by virtue of which the land in controversy was located, and such instrument could not relate to or convey a right which did not exist; and that if said instrument did relate to the land in controversy it could at best convey but an equitable interest in the land; and, as the certificate by virtue of which the land was located was not issued until two years after the date of the instrument, said equitable interest had become stale and barred by the lapse of time; and plaintiff having pleaded limitation and stale demand, and defendant having failed to excuse his delay of over 40 years in asserting any rights under said deed, it was not admissible in evidence. It is evident that the right of Caleb Holloway to a grant of a third of a league of land had its origin in the constitution of the republic of Texas. It is not unlikely, from what the record discloses, that he had a recognized right to acquire the same quantity of land under the colonial government, and that land had been surveyed for him, but that the title was not acquired because of its not having been perfected before the change of government, and by his not taking afterwards such steps as were required to enable him to acquire title to the particular survey. On the 14th day of February, 1840, he had a right given by the constitution to select and own one-third of a league of land, but did not then have a certificate as the evidence of that right or a lawful survey anywhere. Was this right capable of being sold on that date? The question is affirmatively answered by the case of Johnson v. Newman, 43 Tex. 639. In that case it is said: "Though at the date of this contract Mitchell had neither a title to the land in controversy, nor to the certificate under which it has been acquired, still there was, undoubtedly, guarantied to him by the constitution the right to this amount of land on his complying with the requirements to be prescribed by law. This right, though neither real nor personal property in esse, was nevertheless an inchoate right to get that quantity of land out of some part of the public domain at the time and in the manner to be afterwards provided and determined by the government. It was a right or interest of such character as to be the subject of a contract."

Caleb Holloway held a property in the right to acquire land that he could sell. Did he convey it by the deed made by him to Jesse Walling? This question is argued as if it depended upon the correct answer to two other questions, the first one being, did the instrument convey the land that Holloway's certificate was then located on? and, if it did, then, did the sale of the land to Walling carry with it the title to the land certificate, when the title to that location failed, because the land had been previously appropriated, and the certificate was floated and located on the land in controversy, — an entirely different survey? We think it is clear, and well settled,...