Timmony v. Burns

• Decision Date: 09 June 1897
• Citation: 42 S.W. 133
• Court: Texas Court of Appeals
• Parties: TIMMONY v. BURNS et al.<SMALL><SUP>1</SUP></SMALL>

42 S.W. 133

TIMMONY v. BURNS et al.¹

Court of Civil Appeals of Texas.

June 9, 1897.

Appeal from district court, Atascosa county; M. F. Lowe, Judge.

Action by E. H. Timmony against Arnah Belle Burns and others to try title to land. From judgment for defendant Burns, plaintiff appeals. Affirmed.

John W. Preston, C. L. Bates, Eckford & Hess, and T. W. Hankinson, for appellant. J. F. Onion, for appellees.

FLY, J.

This is an action of trespass to try title to 1,280 acres of land in Atascosa county, instituted by appellant against H. B. Adams, Eugenia A. T. Wickes, Caroline Scranton, Julia Swart, Albert L. Wickes, Rebecca Mather, and Arnah Belle Burns. All of the defendants except the last named disclaimed any interest in the land. Arnah Belle Burns suggested to the court that she was a married woman, and that no legal judgment could be rendered against her without joinder of her husband, Zenos Burns. There is no order making him a party, but we may presume that the order was made, as he filed an answer in the case. The cause was tried with a jury, and resulted in a verdict and judgment for appellees.

Appellant claimed the land through a bounty warrant issued to him in 1839. The facts show that on October 19, 1846, appellant transferred the certificate to Christopher A. Ballard, and in 1873 a patent was issued in the name of Edward H. Timmony. The land was conveyed to the vendors of appellees by Louisa Ballard, widow of Christopher A. Ballard, and his son, C. B. Ballard, the only heirs of said Christopher A. Ballard; and they showed a complete chain of title to the land in controversy. Appellant swore that the transfer on the back of the certificate was a forgery, and that he had never transferred it; that he lost it in 1846, but had not hunted for nor made any inquiry about it, and heard nothing more of the certificate for 45 years, when he was approached by an attorney at law in regard to it. It is urged by appellant that the transfer should not have been admitted as an ancient instrument. The modern rule as to ancient instruments is that, where a document is 30 years old, and is free from suspicion, and comes from the proper custody, it is admissible in evidence as an ancient instrument. Parker v. Chancellor, 73 Tex. 478, 11 S. W. 503; Ammons v. Dwyer, 78 Tex. 639, 15 S. W. 1049; Crain v. Huntington, 81 Tex. 614, 17 S. W. 243; Holt v. Maverick, 5 Tex. Civ. App. 650, 23 S. W. 751; Chamberlain v. Showalter, 5 Tex. Civ. App. 226, 23 S. W. 1017. No acts of ownership are necessary in connection with the instrument, under the late rule. An affidavit was made as to the transfer of the certificate being a forgery, but this would not prevent its introduction as an ancient instrument. Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963.

There is no proof as to when the land was located, but the certificate was placed on file in the general land office of Texas in June, 1855, and it is presumable that it would not have found its way into the land office until its location, and it must also be presumed that the transfer was indorsed on it when it was filed. The certificate was then in the proper custody in 1855, and remained therein until ordered to be brought to the district court, in 1896, a period of 41 years. There is nothing upon the face of the transfer to indicate a forgery, or to raise a suspicion of its genuineness. The paper was, therefore, properly admitted as an ancient instrument. Appellant having sworn that the transfer was a forgery, the issue was then joined on that point. The jury, on the issue, decided in favor of appellees, and there was testimony to sustain their finding. It was not error to permit the witnesses Davis, Corley, Stewart, Wootters, and Broxson to swear that they had known J. C. Gillespie, one of the subscribing witnesses to the transfer, from 1846 to 1856, when he had died; that he had been county clerk for a number of years; that his handwriting was familiar to them; that they believed they knew his signature, and that they believed his genuine signature was on the transfer. Hollis v. Dashiell, 52 Tex. 199. In connection with the foregoing testimony, experts were introduced, who swore that in their opinion the signature of E. H....