Smith v. Shinn

• Decision Date: 24 October 1882
• Docket Number: Case No. 1233.
• Citation: 58 Tex. 1
• Parties: J. LYLE SMITH, ADM'R, v. W. E. SHINN ET AL.
• Court: Texas Supreme Court

58 Tex. 1

J. LYLE SMITH, ADM'R,

v.W. E. SHINN ET AL.

Case No. 1233.

Supreme Court of Texas.

Oct. 24, 1882.

APPEAL from Wise. Tried below before the Hon. C. C. Potter.

W. E. Shinn et al. brought this suit against appellant's tenants the 27th day of April, 1880, to recover the land described in the petition. They claimed the land as heirs and vendees of the heirs of Geo. W. Lernoyn, deceased, and derived title as follows:

1st. Bounty land warrant for three hundred and twenty acres of land, dated November 20, 1838, issued by the secretary of war to George W. Lernoyn. 2d. Patent issued to George W. Lernoyn by virtue of bounty warrant No. 4431.

3d. Heirship, and as vendees of the other heirs of George W. Lernoyn.

Appellant claimed title as follows:

1st. By virtue of said bounty warrant.

2d. Transfer of the same by T. D. Tompkins to Uri Holbrook, dated January 8, 1839.

3d. Transfer of same by Uri Holbrook to B. F. Wright, dated April 29, 1847.

4th. Location of the same by D. R. Mitchell for B. F. Wright upon the land in controversy in 1853.

5th. Patent to Lernoyn.

Appellant defended by general demurrer, general denial, limitation, lapse of time, and specially setting up title as above.

The appellees replied that if the defendants had held possession of the certificate as claimed, that then they obtained the same through fraud, and kept the same concealed from them until the year 1860; that the plaintiffs and those under whom they claimed had held adverse possession of the land for more than ten years before they were evicted by defendants.

The case was tried October 26, 1881, and resulted in a verdict and judgment in favor of appellees, from which Smith, as administrator of Wright, appealed.

The errors assigned were these:

1st. The court erred in permitting plaintiffs to read in evidence the patent to George W. Lernoyn.

2d. The court erred in permitting plaintiff to read the deposition of W. B. Lernoyn, “that he had heard his father say frequently that he was in the war of 1836.”

3d. The court erred in not giving the special charges asked by defendants.

4th. The court erred in not granting defendants a new trial for the reasons in said motion stated.

The charges asked by appellant, and refused, were as to the presumption of the acquiescence by George W. Lernoyn in the transfer of the warrant by Tompkins, and as to limitation, by reason of the adverse possession of Holbrook and Wright for more than ten years before they located the certificate.

Lovejoy, Dickson, Patterson and A. M. Carter, for appellant.

[No briefs for appellee transmitted by the clerk.]

WATTS, J. COM. APP.

Appellant's first proposition is that the court erred in refusing to exclude the patent as evidence. The objection to its introduction is based upon a variance between the petition and the patent in respect to the name of the patentee. In the former the name is given as “George W. Lernoyne,” in the latter as “George W. Lernoyn.” In a motion filed by appellant for leave to withdraw title papers from the general land office, he states that the land in controversy was patented to Geo. W. Lernoyne by virtue of bounty warrant No. 4431.

To constitute a variance between the pleadings and evidence, the misdescription must be such as to mislead or surprise the adverse party. McClelland v. Smith, 3 Tex., 210;Hays v. Samuels, 55 Tex., 563. An examination of the record discloses the fact that the appellant was neither misled or surprised to his injury by reason of the supposed variance in the name of the patentee.

The evidence of W. B. Lernoyne, to the effect that he had frequently heard his father say that he had served in the war of 1836, was certainly hearsay and inadmissible. That evidence tended to identify ...