Rodriguez v. Hayes

• Decision Date: 04 February 1890
• Citation: 13 S.W. 296
• Parties: RODRIGUEZ <I>et al.</I> <I>v.</I> HAYES <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 296

RODRIGUEZ et al.

v. HAYES et al.

Supreme Court of Texas.

February 4, 1890.

Commissioners' decision. Appeal from district court, Jackson county; W. H. BURKHART, Judge.

Francis M. White and J. D. Owen, for appellants. John Ireland, for appellees.

HOBBY, J.

Appellants, Narciso, Jesus, Narciso A. and Trinidad Rodriguez, and Jesus Lafuente, in their own behalf, and the last named, as next friend for Simon, Delfina, Adela, and Micuela Lafuente, minors, brought this action of trespass to try title, on the 23d day of March, 1887, to recover the land described in the petition, as the league granted to Narciso Rodriguez as a colonist of De Leon's colony on March 25, 1833. The plaintiffs sought a recovery upon the alleged ground that the grantee, Rodriguez, died owning said land, and that they were his heirs. There was no controversy as to the fact that Narciso Rodriguez was the original grantee, — his title having issued on March 26, 1833, under the colonization law of March 26, 1825; and there was proof by plaintiffs of heirship. The defendants pleaded not guilty; the three, five, and ten years' statutes of limitation; and set up, specially, title under a conditional deed or mortgage, — an authentic act made by the grantee, Narciso Rodriguez, to Phillip Dimmitt, on the 30th day September, 1833, in consideration of $5,000 advanced to Rodriguez, payable in six years, with 10 per cent. interest. Defendants also set up a title from said Rodriguez to W. E. Jones, administrator of the estate of said Dimmitt, made subsequent to the maturity of the conditional deed or mortgage. They pleaded also stale demand. John Ireland made himself a party defendant, as the warrantor of John V. Hayes. No issue appears to have been made on his plea, and, the judgment being for defendant, no further notice was taken of his appearance. The cause was tried by the court at the November term, 1887, without a jury, and judgment was rendered that plaintiffs take nothing by their suit, from which this appeal is taken.

The errors assigned raise, first, the question of the admissibility of the mortgage introduced in evidence by the defendants, and its validity as a title. The propositions of appellants, in support of their assignment assailing this mortgage, may be considered together. They are: That the mortgage was inadmissible on account of unexplained erasures; it was never assigned to the defendants, nor was the debt on which it was based; it constituted no evidence of title; it was null and void, because in contravention of the law in force when executed; it was barred by limitation, and was no evidence of notice of defendants' claim. Such are the objections urged to this instrument, which was an original Spanish mortgage, executed on the 30th day of September by Narciso Rodriguez before the office with assisting witnesses. It conveyed to Phillip Dimmitt, as security for $5,000 loaned to Rodriguez by the former, the league of land granted the latter under the colonization law of March 25, 1825, in case of the failure to pay that amount, with 10 per cent. interest, within six years; which land, it recited, possession of had been given Rodriguez under the law, and the documents of which grant were delivered as a proof of the good faith of the mortgagor. The mortgagee was required to pay the state dues on the grant, and he was authorized to take possession. Attached to the original, which accompanied the transcript in this case by order of the court below, is a copy, which it is agreed was correctly translated by the Spanish translator in the general land-office.

The erasures referred to consist of a blot over what appears to be the character "&" and a word or name which in the original follows immediately after the name "Felipe Dimmitt." The language of the instrument would indicate that "Felipe Dimmitt," "&" some other person, appeared before the officer with Rodriguez, and made the loan to him. They are referred to as the "first-named parties," who "had made a loan to the third party" (Rodriguez) of five thousand dollars. Again, referring to the title issued to Rodriguez as a colonist under the law of March 24, 1825, it recites: "The documents of which grant, as a proof of the good faith which he acts, he herewith delivers; the first named parties obligating themselves to pay the state dues," etc. At the foot of the instrument, and having no connection with it, below the signatures of the grantor and the officer, and above those of the assisting witnesses, is the second erasure, consisting also of a blot over what appears to be two words or names, probably intended for assisting witnesses, but blotted out. The general rules are well settled and familiar, that on the production of an instrument, if it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance. If nothing appears to the contrary, the alteration, it is said, will be presumed to be contemporaneous with the execution of the instrument. "If any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done, as well as that of the person by whom and the intent with which the alteration was made, as matters of fact, to be ultimately found by the jury upon proofs to be adduced by the party offering the instrument," etc. 1 Greenl. Ev. § 564. These principles are recognized in Park v. Glover, 23 Tex. 472. Although there is not perfect harmony in the cases on the subject, it is generally agreed that, as fraud is not presumed, therefore, if no peculiar circumstances of suspicion attach to an altered instrument, the alteration is presumed to be innocent, or to have been made prior to its execution. 1 Greenl. Ev. § 564, and note 1. In the case of Park v. Glover, supra, plaintiff offered in evidence a bond from Jonas Dixon to John Glover, and a transfer or assignment of the bond by Glover, and a certified copy from the records of the county of the bond and assignment which was written on it. The bond was read. To the reading of the assignment which was written on the bond, defendants objected on the ground that it showed on its face that it had been altered. It was as follows: "For value received, I transfer all my right," etc., "to the above bond, to W. A. Park. July 16, 1844. JOHN GLOVER. Signed and sealed in presence of us. ALBERT MARTIN GLOVER. S. C. CROSS." The word "W. A. Park," and the words, "signed and sealed in presence of us," appeared to have been written in black, while the other words were in blue, ink. The certified copy from the county records, which was offered along with the original, showed that the alteration was made after the instrument had been recorded.

The facts in the present case are altogether unlike those reported in the case cited. Applying the rule mentioned to the mortgage before us, the presumption would arise that the erasures were made contemporaneously with its...