Stroud v. Springfield

• Decision Date: 31 October 1866
• Citation: 28 Tex. 649
• Parties: MANDRED STROUD v. JAMES M. SPRINGFIELD.
• Court: Texas Supreme Court

28 Tex. 649

MANDRED STROUD

v.JAMES M. SPRINGFIELD.

Supreme Court of Texas.

October, 1866.

It is one of the fundamental rules of evidence, that all private writings must be proved to be genuine before they can be admitted as evidence. One of the exceptions to this rule is where a deed is thirty years old, in which case it is presumed that proof of its execution by subscribing witnesses or otherwise is out of reach, and the deed is said to prove itself. The principle underlying this exception seems applicable to all ancient writings which might be evidence of present rights.

But to the admissibility of an instrument as an ancient writing it is essential that it be free from suspicion, that it come from proper custody, and that it has been so acted on as to afford some corroborative proof of its genuineness.

Though it had been held that, to render a conveyance admissible as an ancient deed, there must be proof of possession under or referable to it, and running with it, yet the weight of authority seems to have established that, if such proof is not to be had, the deed may be read upon evidence of other circumstances corroborative of its genuineness.

What circumstances of corroboration are necessary to authenticate a writing offered as an ancient deed must greatly depend in every case upon the purpose and character of the instrument itself. They must be auxiliary to the apparent antiquity of the deed, and be sufficient to raise a reasonable presumption of its genuineness. In the case at bar, slight evidence tending to prove the handwriting to be that of the parties whose act the instrument purported to be would have sufficed.

When it appears that the party offering an instrument as an ancient writing could have examined witnesses who had had opportunities of acquiring a knowledge of the handwriting of the persons whose act the instrument purported to be, the omission of the party to endeavor to make proof of the handwriting by such witnesses is itself a circumstance which should excite suspicion of the genuineness of the instrument; and a suspicion arising in this manner is strengthened in a case where the instrument in question purported to be the act of public and prominent government officers, with whose handwriting many persons were likely to be acquainted.

The mere fact that the field-notes of a survey made in 1835 were found among the papers of a deceased person, who was at the time the surveyor of the land district, was not sufficient to authorize the admission of the field-notes in evidence, when it appeared that they had never been recognized or acted on either by the government or private parties.

When two documents are offered in evidence together and in connection with each other, and the rejection of one would render the other futile, it is not error, if one of them be inadmissible, to exclude them both.

On questions of boundaries, it seems that declarations of deceased persons who were in a situation to possess information on the subject, and who were not interested, are admissible in evidence, even when the declarations were not part of the original res gestæ. At common law, such evidence was only admissible in cases involving questions of a general or public nature, but was not allowed for the purpose of establishing the boundaries of private estates. The tendency of American decisions has been to disregard this distinction, and to admit such evidence on questions of private as well as public boundaries. This tendency is the result of the necessity of resorting to this character of evidence, occasioned by the constant destruction of landmarks in this country, in consequence of the perishable nature of their materials and of the settlement and improvement of the lands, by reason of which it is indispensable in many cases that hearsay or reputation should be received to establish old boundaries. Pas. Dig. art. 5294, note 1144; 16 Tex. 92;29 Tex. 318.

The plaintiff, for the purpose of contradicting the statements of an adverse witness, offered in evidence certain affidavits purporting to have been made in 1838, and relating to surveys made previous to the closing of the land office by the consultation (Pas. Dig. art. XIV, p. 27), and, as a predicate for the introduction of such documents, the plaintiff proved the death of the persons and officers by and before whom the affidavits purported to have been made: Held, that the predicate was insufficient, and that the affidavits were properly excluded, no proof having been attempted of the handwriting of the instruments, of the custody whence they came, or of any other circumstance corroborative of their genuineness or antiquity.

Evidence of the execution of papers of many years' standing is not expected to be so direct or full as would otherwise be required. The law is indulgent in such cases, and does not demand that complete measure of proof which is required in recent transactions. Evidence, for instance, which, though inadmissible in respect to a recent transaction, is persuasive of the authenticity of an instrument, is freely admitted when the instrument is aged.

Common reputation or understanding in the neighborhood is admissible with regard to ancient boundaries, but it must be general and concurrent, and must have been formed before the commencement of the controversy in which it is used as evidence. Proof of such reputation therefore must have reference to a time ante litem motam. Pas. Dig. art. 5294, note 1144.

In a suit respecting boundaries, a witness was asked, “whether or not the location of the Powell league, as represented on the map, had been uniformly and generally respected and accredited as the true location by the community around it?” The question was objected to, and the objection was sustained: Held, that the ruling was correct, because the question as propounded was not limited to a period anterior to the commencement of the suit, and also because it seems to be directed more towards proving the correctness of the map than the locality of the boundaries of the survey on the ground.

Where one party, for the purpose of proving the locality of a survey as claimed by him, was permitted to introduce a sketch from the general land office map, it was not error to allow the adverse party to introduce in rebuttal patents from the general land office, in order to show thereby that the officers of the government regarded the map as incorrect in this particular.

In actions of trespass to try title, the claimant or plaintiff must not only prove the title under which he claims, but must also prove that the land described in his petition is the same possessed by the defendant, unless he is relieved from so proving by the pleadings or admissions of the defendants. 11 Tex. 662;16 Tex. 565;27 Tex. 593.

The plea of “not guilty” admits nothing, but puts in issue not only the title of the plaintiff, but also the possession of the defendant, and imposes on the plaintiff the necessity of proving everything requisite to sustain his right of action. Pas. Dig. art. 5307, note 1152.

The 6th section of the act of 5 February, 1840 (Pas. Dig. art. 5297, note 1145), dispensing with proof of an actual trespass by the defendant, does not affect this question; that provision was simply designed to dispense with a formality not involving any right of a defendant, but was not intended to shift the burden of proof, or in any way to change the general principles of law governing the rights of the parties.

By the act of 5 February, 1840 (trespass to try title), the common-law action of ejectment, with its fictions, was abolished, and the present form was instituted. It was designed as a simple and direct mode of litigating and quieting titles in lands. Pas. Dig. art. 5292, note 1142.

As to what are boundaries, how they may be established and identified, and the rules which shall govern in ascertaining and deciding their locality, has been settled by repeated adjudications, with which we are satisfied. Booth v. Upshur, 26 Tex. 64;Booth v. Strippleman, Id. 436, and the various cases collected in Pas. Dig. note 1144; 9 Tex. 97;16 Tex. 74, 96;22 Tex. 633;26 Tex. 64, 436.

In a case of conflicting evidence, in order to justify this court in setting aside a verdict on the ground that it is against the weight of evidence, it is not sufficient that the verdict does not clearly appear to be right; it must clearly appear to be wrong, else it will not be disturbed. Pas. Dig. art. 1470, note 566; 7 Tex. 4;8 Tex. 331, 509;19 Tex. 58, 101;23 Tex. 641;ante, 185, 341.

See this case for an instance in which the court reviews the proofs, and is of opinion that the verdict is contrary to the weight of the evidence as disclosed in the record, but at the same time, in view of the conflict of testimony, declines to disturb the verdict or reverse the judgment, because there was some evidence to sustain it.

APPEAL from Falls. The case was tried before Hon. JOHN GREGG, one of the district judges.

Trespass to try title, brought by the appellant, on the 23d of September, 1858, against James M. Springfield and several other defendants, for the recovery of the southeast half of a league of land originally granted to Archibald Powell. The defendants plead “not guilty.” There was no controversy about titles, it being admitted that the plaintiff's title to the “Powell league” was perfect; but the controversy turned altogether upon the true locality of the league, upon which depended the question, whether any portion of it were in possession of the defendants, or any of them. The title to Powell, under which the plaintiff claimed, was issued by the commissioner of the Nashville, or Robertson's colony, on the 3d of August, 1835, and recited that the land “was surveyed by the surveyor, J. Hadley, previously appointed for that purpose.”

On the trial of the case, at the fall term, 1860, the plaintiff introduced a land-office translation of the original title to Powell, and...