Willis v. Lewis

• Citation: 28 Tex. 185
• Parties: ROBERT WILLIS ET AL. v. WILLIAM R. LEWIS ET AL.
• Decision Date: 31 October 1866
• Court: Texas Supreme Court

28 Tex. 185

ROBERT WILLIS ET AL.

v.WILLIAM R. LEWIS ET AL.

Supreme Court of Texas.

October, 1866.

When the defendant claims title to the land in controversy under a deed, and the plaintiff makes affidavit that the deed is a forgery, the burden of proving its execution is devolved upon the defendant. Pas. Dig. art. 3716, note 840.

The chief justices of counties had the right to take the acknowledgment of deeds in 1845. Pas. Dig. art. 4978, note 1089.

Where one witness (before whom, as chief justice, the deed had been acknowledged) testified positively to the acknowledgment of a deed by the maker, and stated further his impression, that the maker signed the deed in his presence, and other witnesses proved that the maker of the deed could not read or write, there is no necessary conflict of testimony; and even if the impression of the single witness were erroneous, it does not necessarily follow that the force and value of his other statements are thereby impaired, by thus reflecting on the accuracy of his memory with regard to a transaction which had occurred many years before, and when it appeared that the witness was so circumstanced as to render the mistake a natural one. 7 Tex. 348, 372;19 Tex. 148.

From the issuance of an unconditional headright certificate, the presumption arises that the grantee, as required by law, presented himself in person before the board of land commissioners on the day it was granted to him, and such a presumption fortifies the testimony of a witness who affirms that the grantee was present on that day at the place where the board held its session, and where the acknowledgment of a deed, proved by the witness, is alleged to have been made.

The fact that a person was not able to read or write does not necessarily imply that a signature purporting to be his is a forgery. If he acknowledged it to be his, though actually written by another, he thereby adopted it, and it became his act and deed as truly as if he had signed it with his own hand. See the opinion in this case for a discussion of the preponderance of evidence for or against the genuineness of a deed impeached as a forgery, and particularly for considerations pertinent to the relative value of affirmative and negative testimony. For the proof, see Pas. Dig. art. 4140; 5 Tex. 440.

One positive witness, whose evidence is unimpeached, is of more value than a hundred merely negative witnesses.

While a verdict must appear to be clearly wrong before it will be disturbed by this court, yet, when the jury have manifestly found against the whole weight of evidence, it is not only the right, but the duty of the court to set the verdict aside. Pas. Dig. art. 1470, note 566; 1 Tex. 326;8 Tex. 460;19 Tex. 58;post, 649.

APPEAL from Ellis. The case was tried before Hon. NAT. M. BURFORD, one of the district judges. All material facts appear clearly in the opinion of the court.

George W. Guess, for the appellants.

J. W. Ferris, for the appellees.

COKE, J.

Of the various errors assigned, all have been abandoned in argument except that which charges the verdict of the jury to be contrary to the law and evidence, and assigns as error the refusal of the court to set aside the verdict on that ground; and as this presents the only question developed in the record deemed material to a decision of the case, none other will be considered.

The land in controversy was patented on the 26th day of April, 1855, to Rees Lewis. Rees Lewis is proved to have died in 1846, and the appellees are admitted to be his children and heirs. Appellants claim title to the land by virtue of a deed of conveyance from Rees Lewis to William S. Beaty, through whom they deraign title to the unconditional headright certificate of said Lewis, by virtue of which the land was located and patented, alleged to have been executed on the 24th day of February, 1845, and acknowledged and proved for record on the same day, before James M. Long, chief justice of Travis county. Plaintiffs made affidavit in the court below in the terms of the statute, denying the execution by Rees Lewis of said deed of transfer, and charging the same to be a forgery.

The only question in the case on which there was a contest in the court below, was as to whether or not this instrument is the act and deed of Rees Lewis. The issue was found against the deed, and judgment rendered in favor of appellees, the heirs of Lewis; and the question for revision here is, as to the sufficiency of the testimony to sustain the verdict. The charge of the court is believed, in the main, to have submitted the questions at issue with substantial correctness to the jury. The affidavit of forgery devolved upon the appellants the burden of proving the execution of the deed in the common-law mode. There were no subscribing witnesses.

For the purpose of proving its execution, appellants introduced the deposition of James M. Long, the officer before whom it purports to have been acknowledged, and who was at the time chief justice of Travis county, and by virtue of his office authorized to take acknowledgment of deeds for record, and whose certificate, seal, and signature, in the usual form, are found on this deed.

He testifies that he was chief justice of Travis county on the 24th day of February, 1845, and president of the board of land commissioners of that county, and that on that day Rees Lewis, who became personally known to him in 1840, at which time said Lewis lived in Austin, and whom he knew as late as 1845, applied for and received from said board of land commissioners his unconditional headright certificate for six hundred and forty acres; and that on the same day Rees Lewis acknowledged before him officially, for the purpose of authentication for record, the execution of the deed of transfer in question, and that his certificate, signature, etc., now appearing on said deed, are genuine, and placed there by him on the day and in the mode it is there represented. He thinks and believes Lewis signed the deed in his presence, but does not speak positively on that point. He says positively and emphatically that he did appear before him, and acknowledge its execution at the time and place named in the certificate.

His description of Rees Lewis, his age, occupation, etc., and his recollection that, in 1840, he lived in Austin with Richard Bullock, and his impression that he was a Welshman by birth, in all which he is fully...