Stone v. Moore

• Decision Date: 21 January 1899
• Citation: 48 S.W. 1097
• Parties: STONE et al. v. MOORE.
• Court: Texas Court of Appeals

48 S.W. 1097

STONE et al. v. MOORE.

Court of Civil Appeals of Texas.

January 21, 1899.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by Olin T. Moore against Heber Stone and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Tarlton & Ayres, J. M. Moore, and Theodore Mack, for appellants. D. G. Hunt and Stewart & Greene, for appellee.

STEPHENS, J.

This suit was brought by appellee to recover an undivided half of the John F. Sapp league and labor survey of land, in Eastland county. Judgment first went against him, but was set aside on appeal to this court, as will appear from the opinion of Justice Hunter in 36 S. W. 909. The venue was then changed from Eastland to Tarrant county, where he obtained the judgment from which this appeal is prosecuted. This recovery was obtained by him as the sole heir of his deceased mother, upon the following conveyances, each of which was in proper form attacked by appellants for forgery: First, a transfer from John F. Sapp to Elisha Clapp, dated January 15, 1838, of the certificate by virtue of which the land was subsequently located; second, a similar transfer from Elisha Clapp to John L. Bryan, dated July 24, 1846; third, a deed from John L. Bryan to G. W. Moore, dated May 24, 1864, to the land in controversy, the certificate having been located in 1858, and the land patented in 1860 "to John F. Sapp, his heirs and assigns." The issue of forgery so made was the paramount issue in the case, and was one upon which the evidence was conflicting. To sustain the issue on their part, appellants offered the written testimony of Rhodes Fisher, given on the former trial, under an agreement of counsel that it might be read in evidence, subject to all legal objections. A portion of this testimony was admitted and a portion excluded. In that admitted the witness testified that he had been clerk of the general land office of this state from 1856 until the war, and afterwards, from 1873 to 1874, file clerk, and after that chief clerk for several years; that for a number of years he made a study of the genuineness of land certificates, transfers, and handwritings. Being shown the conveyances from Elisha Clapp to John L. Bryan, and from John L. Bryan to G. W. Moore, he testified, in relation to the acknowledgment before A. P. Thompson to the Elisha Clapp deed, that he was acquainted with the handwriting of Thompson, and that it was not that of Thompson, and that he believed the signature of Thompson had been made, and afterwards shaded on said instrument, describing the manner in which such work is done. He further testified, apparently as an expert, to many other evidences of forgery in the two deeds shown him. Appellants then offered to read from his written testimony taken on the former trial the following: "Witness knew P. W. Wynne; that he (Wynne) was connected with forgeries of land titles, being one of the forgers who was convicted in Travis county for land forgeries during the time of the Ham-Tullis exposure and prosecutions; that witness had occasion to make a study of the handwriting of P. W. Wynne; that witness was instrumental in the prosecution of said Wynne for forgeries when said Wynne was convicted in Travis county; that these deeds were forgeries by Wynne, being the deeds referred to by witness in his evidence copied in the statement of facts (viz. deeds from Clapp to Bryan and from Bryan to Moore); that one characteristic in Wynne's handwriting was a break in such words as `and' and `land' between the `n' and `d,' the `n' not naturally joined to the `d,' caused by the stoppage of the hand in writing the words, very plain in many instances, and in other instances brought out by the use of the microscope, and characteristic likenesses in the `x' in the words `Texas' where it occurred in the deeds, and the capital `T' in the two deeds. `Transferred' occurs in both deeds, and is spelled alike and wrong in both deeds; the same break in the formation of the letters `tr' `ans' `fer' `ed.' In `office,' wherever used, the final `ce' is detached; a breaking of this sort being characteristic in all of Wynne's handwritings. Witness had so much experience with Wynne's forgeries that he could not give each little item and idiosyncracy in Wynne's handwriting. Witness was of the opinion that the above deeds were forgeries of Wynne. The receipt (being the one from Sapp to Clapp, the original of which is sent up with the record by order of court) witness also believed, though he was not so clear as to this, was also a forgery by Wynne, especially the marginal venue of `Houston, Texas,' and the name `Sapp,' by which it is signed." This testimony was all excluded, upon the following objections: "To all of which testimony above set forth the plaintiff objected, so far as the same tended to connect P. W. Wynne with said instruments, for the following reasons, to wit: That it is immaterial who wrote said instruments, and because it has not been shown that the witness Rhodes Fisher is acquainted with the signatures and handwritings of Elisha Clapp and John L. Bryan, who purport to have signed said deeds, nor has he ever seen them write. Plaintiff further objected because, in order for an expert to be competent to testify as an expert, he must qualify himself by showing that he knows the signatures and handwritings of the parties in question; that he has seen them write; or else it must be from a comparison with genuine signatures, either proven or admitted on the trial of the cause. There are no admitted genuine signatures of either of these parties in this case; neither are there any proven signatures of said parties in the case. Which objections the court sustained, and said testimony, so far as the same related to said Wynne, was excluded." Appellants offered to make the further proof by this witness that while he was connected with the general land office he had often seen P. W. Wynne and G. W. Moore together in the land office, but it was excluded, on the objection that it was immaterial and irrelevant. Appellants also offered to prove, by the deposition of Caro A. Bryan, daughter of John L. Bryan, deceased, that the grantor's signature to the deed from John L. Bryan to G. W. Moore, dated May 24, 1864, was not that of her father, she...