Ward v. Cameron

• Citation: 80 S.W. 69
• Parties: WARD et al. v. CAMERON et al.
• Decision Date: 07 April 1904
• Court: Texas Supreme Court

Page 69

80 S.W. 69

WARD et al. v. CAMERON et al.

Supreme Court of Texas.

April 7, 1904.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by A. T. Ward and others against W. W. Cameron and others. From a judgment of the Court of Civil Appeals (76 S. W. 240) affirming a judgment in favor of defendants, plaintiff's bring error. Affirmed.

J. R. Hamilton, Bean & Nelms, and Walton & Walton, for plaintiffs in error. Stevenson & Stevenson, R. O. Kenley, and Nunn & Nunn, for defendants in error.

BROWN, J.

Plaintiffs in error sued in trespass to try title to recover from the defendants in error three tracts of land situated in Trinity county, located by virtue of two certificates issued by the Comptroller of the state of Texas to the heirs of John Ward, who fell at Goliad in the service of the republic of Texas. John Ward left but two heirs— David Ward, a brother, and Mary Ward, a sister; the latter being married to William Carson prior to the death of her brother. David Ward, William Carson, and his wife all lived in the state of Georgia. David Ward died without any issue, and Mary Carson and her husband are also dead; the plaintiffs in error being their descendants, and the only heirs of David Ward and Mary and William Carson. The plaintiffs in error are entitled to recover the land sued for, unless the defendants in error have shown that David Ward and Mary and William Carson parted with their interest in the lands or the certificates during their lives.

The defendants introduced in evidence two written instruments, each dated the 19th day of October, 1859, and each signed by David Ward. One of the instruments conveyed to Joseph N. Stripling donation land certificate No. 17, issued by Clement R. Johns, Comptroller of the state of Texas, to the heirs of John Ward, for 640 acres of land. The other instrument conveyed to J. N. Stripling bounty certificate No. 44, for 960 acres of land, issued by Clement Johns, Comptroller of the state of Texas, on September 27, 1859, to the heirs of John Ward. In each transfer David Ward covenanted that he was the only heir of John Ward, deceased, and upon each transfer was indorsed an affidavit as follows, to wit:

"The State of Georgia, Chatham County. Before me the undersigned commissioner of the State of Texas, appeared William Carson and Mary Carson, persons of credibility to me known, who on oath duly signed, declared that they are well acquainted with David Ward, who resides at Burke County, State of Georgia, that the said David Ward is the only heir of Major John Ward, who was killed in the Texas revolution; and the said parties declare further that they were acquainted with Major John Ward in his life-time; at the time of his death, he was a single man and left no other heirs but David Ward, his brother. William Carson. Mary Carson."

Each of the transfers was acknowledged at Savannah, Ga., before Joseph Felt, commissioner of deeds for the state of Texas, on the day of the date of the instrument; and each affidavit was signed by William Carson and Mary Carson, and sworn to before Joseph Felt, commissioner of deeds, on the day the transfers were made. The transfers were executed with the name of the grantee in blank, and afterwards filled in by the name as before stated. In one it was written, "Joseph N. Stripling," and in the other "J. N. Stripling"; the same person being the grantee in both transfers. Each transfer was, at the date of the trial, more than 30 years old, and had been duly recorded in Trinity county. J. R. Hamilton, one of the attorneys for plaintiffs in error, filed his affidavit of forgery to each of the transfers. Over objections by the plaintiffs in error, the court admitted these transfers in evidence. The defendants proved that the common law of England was in force in the state of Georgia up to the year 1866.

Defendants then introduced the following instrument:

"Georgia, Chatham County Whereas, on this the eighteenth day of December, A. D. 1860, James B. Stripling of the county of Madison and State of Florida, has made and caused to be delivered two certain promissory notes to Levi S. Russell and William Carson, both of the said county of Chatham and State of Georgia, each of said notes being for the principal sum of five hundred and seventy-six dollars and seventy-five cents and payable to James B. Stripling, Senior, or order, and endorsed by him, one due the first day of July next and the other due the first day of October next, and each bearing interest from the first day of January next, and payable at either bank in the City of Savannah and both being signed by J. B. Stripling, Jun., for and in consideration of said James B. Stripling, Jun., having received from the said Levi S. Russell and William Carson three certain land warrants or certificates, each issued at Austin, Texas, September 27th, 1859, by Clement R. Johns, Comptroller, and authorizing the heirs of Major John Ward, deceased, to locate and have surveyed one 960 (nine hundred and sixty) acres bounty, and another six hundred and forty donation, and the other fourteen hundred and seventy-six acres headright upon any of the vacant and unappropriated domain of the State of Texas. Now, it is agreed between the said James B. Stripling on the one side and the said Levi S. Russell on the other, that the said James B. Stripling, Jun., shall take all necessary legal steps to have the said warrants or certificates located and surveyed by or before the first day of June next. And it is further agreed between the parties aforesaid that if from any irregularity in said warrants or certificates or any of them, or from any irregularity or defect in the transfers of said warrants or certificates from the heirs of said Major John Ward, deceased, or from any other cause whatever, the said James B. Stripling, Jun., his agents, executors, administrators, heirs or assigns may be unable to have surveyed and have appropriated to him or them such quantity of land in said State of Texas as the same call for, then the said Levi S. Russell and William Carson hereby bind themselves, their heirs, executors and administrators to deliver the above described notes to the said James B. Stripling, or his agents, attorney or legal representative, or in case of their failure to make such delivery of said notes, then the said Levi S. Russell and William Carson, shall well and truly refund or cause to be refunded to said James B. Stripling, Jun., his agents or attorney such sum or sums of money as he may have to pay on account of said notes. And it is further agreed that if from any cause whatever, the said James B. Stripling, Jun., or his representatives or assigns shall be unable to have land surveyed under said warrants or certificates in accordance with the tenor and effect of the same, he the said James B., Jun., shall return or cause to be returned the said warrants or certificates to the said Levi S. Russell and William Carson or their agents or legal representatives by or before the 1st day of May next, in good condition such as they are in now, otherwise this agreement shall be null and void.

"In witness whereof, the said parties have hereunto...