Smithwick v. Andrews

• Decision Date: 01 January 1859
• Citation: 24 Tex. 488
• Parties: NOAH SMITHWICK v. REDDIN ANDREWS.
• Court: Texas Supreme Court

24 Tex. 488

NOAH SMITHWICK

v.REDDIN ANDREWS.

Supreme Court of Texas.

1859.

The certificate of the commissioner of the general land office, is not admissible to prove that a deed from one person to another, is in his office; nor can the fact, that a land certificate has been transferred by one person to another, or that land has been conveyed by one person to another, be proved by the mere certificate of any person or officer.

Where there are two issues fairly presented by the pleadings and evidence, it is error for the judge to submit, in his charge to the jury, the decision of the case upon one of them only; if testimony has been adduced tending to sustain the other, it is for the jury to say, whether or not the evidence is full enough to establish it, and the refusal to charge upon it, is error.

APPEAL from Burnet. Tried below before the Hon. Edward H. Vontress.

This suit was commenced by Redding Andrews, on the 3d of April, 1855, against Noah Smithwick, to recover a bounty warrant for 1,280 acres of land, or its value.

The plaintiff claimed the certificate under an alleged purchase by him, from Jesse Billingsley, in the year 1839, of the discharge of Smithwick from twelve months' service, which entitled the said Smithwick to a bounty warrant; Billingsley claimed to own the discharge under a title derived through Smithwick's transfer to one Young.

The petition alleged, that owing to a defect in the authentication of the discharge, the adjutant general refused to issue the bounty warrant; that in consequence thereof, the plaintiff, defendant, and Billingsley, in 1852, brought the matter before the legislature, and it was agreed that an act might be passed authorizing the certificate to issue to, and in the name of the defendant; and that an act was accordingly passed in that shape. That, thereafter, on the 15th day of March, 1852, the defendant gave the plaintiff a written order to the adjutant general to issue the warrant to the said plaintiff, as his assignee, but, subsequently to the date of that order, the defendant fraudulently caused the certificate to be issued to himself, and refused to assign or transfer the same to him.

The defendant's answer alleged that the order was obtained by fraudulent representations, and without any consideration; denied specially the fact that he had ever made a valid sale or transfer of the said discharge; averred that Billingsley never bought or acquired title to the same in the manner alleged; pleaded a general denial of all the allegations of the petition; and also the statute of limitations of two years.

It was proved on the trial, that the defendant admitted, when the parties were engaged in preparing to have passed the act of the legislature above referred to, that the claim belonged to the plaintiff; that the defendant desired it should issue to Andrews, as assignee, but that it was finally concluded and agreed upon, that it should issue to him, the said defendant, on his positive promise to transfer the certificate whenever he obtained it. That course was advised by a member of the legislature, on account of previous refusals by the senate to pass similar acts, authorizing certificates to issue in the name of an assignee; it was also deemed best by Billingsley, on account of the loss of a sheriff's deed, under which he claimed to have derived his title.

The plaintiff read in evidence the order from the defendant to the adjutant general, dated the 15th March, 1852, authorizing him to issue the warrant to the plaintiff as his assignee, reciting therein that “said Andrews is the rightful owner by purchase.”

The bounty warrant was issued by the adjutant general, on the 26th day of March, 1852, in the name of and delivered to, the defendant, in pursuance of a special act of the legislature, approved February 10th, 1852, authorizing it to be issued to the said Smithwick, her heirs and assigns.

On the trial, the defendant offered in evidence, a certificate from the commissioner of the general land office, duly attested by the said officer, as follows:

“GENERAL LAND OFFICE, Austin, Oct. 2d, 1858.

I, Francis M. White, commissioner of the general land office of the state of Texas, do hereby certify, that there is on file in this office, a duly authenticated transfer from Noah Smithwick to D. C. Freeman, Jr., for bounty warrant, No. 1070, for 1,280 acres, issued by James S. Gillett, adjutant general, to said Noah Smithwick, on the 26th day of March, 1852; said transfer bearing date June 11th, 1852.”

To the introduction of this certificate, the plaintiff objected, because the facts recited by the commissioner, were not such as the law required or authorized him to certify to; which objection was sustained, and the certificate was excluded.

The defendant read in evidence, the following portion of the plaintiff's petition, to wit: “Your petitioner states, that said certificate was issued in accordance with the said act of the legislature, on the 10th day of March, 1852, by James S. Gillett, adjutant general, and is No. 1070. Petitioner further states, that since the said certificate issued, the said defendant has refused, and still refuses, to transfer or assign the same to your petitioner, as by said purchase and sale he was bound to do.”

The court instructed the jury as follows: “If the jury believe from the evidence, that the plaintiff purchased the bounty warrant from the defendant, or from those to whom he sold, he is entitled to recover. The order executed by the defendant to the plaintiff, of the 15th of March, 1852, is prima facie evidence, as between the plaintiff and defendant, that the former was the owner of the certificate. The admission of the defendant in regard to the property of the certificate, is evidence against him.”

“If the jury find from the evidence, that the warrant was issued to the defendant, under an agreement that he would transfer it to the plaintiff when it was issued, then the defendant held said warrant in trust for plaintiff, and the statute of limitations would not commence to run against him until he had actual or constructive notice of the adverse claim of the defendant. The possession of the trustee is not, per se, inconsistent to that of the cestui que trust, or beneficiary of the trust.

Unless the jury believe from the evidence, that the defendant has shown that no consideration passed for the certificate, you will find for the plaintiff; but, in that event, you will find for the defendant.”

The defendant asked the court to instruct the jury, “That if the jury believe from the evidence before them, that, for more than two years before the institution of this suit, the defendant obtained possession of the bounty land warrant, and held the possession of the same as his own, adversely to the right of the plaintiff, then plaintiff's right of recovery is barred by the statute of limitations, and the jury will return a verdict for the defendant.”

There was a verdict for the plaintiff for $448, the value of the certificate, and judgment accordingly. The case was before this court previously, and is reported in 20 Tex. 111.

Hancock & West, for the...