Bohanan v. Hans , 26 Tex. 445 ( 1863 )

Wheeler, C. J.

The important question to be considered is, whether the defendant has shown a good title to the land in controversy. For if he has a good title as against the plaintiffs, that will supersede the necessity of considering the other controverted questions; they will become immaterial.

Under the authority of Mills v. Alexander, (21 Tex. R., 154,) it must, we think, be held that the decree of the 11th of September, 1835, of the judge of the first instance of the jurisdiction of Austin, was a valid judgment divesting the original grantee of the title and vesting it in Ayres; and that if concludes all inquiry into the legality of the original contract between Hinch and Veeder, and into the legality of the sale to Ayres by Veeder’s •administrator. The case is in point, and meets and disposes of every objection urged against the title under the decree. (Ib. 162, and authorities cited.) It is unnecessary to re-examine the questions there decided. The decree, if legally established by competent evidence, conclusively determines the question of title.

It is insisted that the decree was not produced, nor any evidence of its existence, and consequently that the deed of the curator made in pursuance of it is no evidence of title. There is, however, in the record what purports to he a certified copy from the records of Washington county of the petition and decree. It appears to have been recorded on the certificate of the judge, who, at the time the copy was given, the 22d of September, 1835, was the keeper of the original. It is not necessary to decide whether it was properly recorded or not; it was not objected to on that ground; nor on the ground that it was not a true copy. The objections to its admission in evidence, as disclosed by the hills of exceptions, do not question its authenticity or verity, as a copy of an existing original, but only its legal effect. On the contrary," the second objection tacitly admits the existence of the judgment, denying the jurisdiction of the court that rendered it. It is said that no predicate was laid for the admission of the “ said transcript;” hut what was meant by this objection, does-not appear. A party objecting to eAddence ought to state his objection clearly and Specifically, so that it may he understood by the court, and met and obviated by the opposing party, if it he capable of being removed by the production of other evidence. The objection is too indefinite. The copy in question of the petition and decree was" made a part of the agreed case, so far as it was “ admissible under the issues/’ from which it would seem that it was not intended to' question the authenticity of the copy, or the manner of proving the record, hut only the legal effect of the proof. And that was the question raised by the bill of exceptions, and not whether the copy AVas admissible as such. The objection to the evidence now urged, was sought to he raised by the fourth instruction' asked by the plaintiffs; hut it was then too late, and the instruction was rightly refused because it was too late to obviate the objection by theproduction of other evidence which it might have been in the power of the party to produce, if the objection had been made at the-proper time. If the defendant had failed to produce any evidence of the decree it might have been different. There would have been a failure to prove a fact essential to the title, and the objection would have been fatal however or whenever raised. But where objections to evidence are not to its competency, but only to the manner of its introduction, or the mode of proof of the fact proposed to be proved, they must be taken when it is produced upon the trial, or they will be deemed to have been waived. If the copy in question had been objected to on the ground that it was the copy of a copy, or that it was not duly authenticated, or did not come from- the proper custodian of the" original, or that it had not been filed and due notice given, or any other like ground, the defendant might have instantly obviated the objection by producing the original, or other competent evidence to which the objection did not apply. But to permit the plaintiffs to reserve an objection of the character of that now insisted on until the evidence was closed, and then raise it by an instruction to the jury, when it was too late to produce other and better evidence, would operate a manifest surprise and injustice upon the party producing the evidence. The objection came too late, and the court did not err in refusing to entertain it. Since, therefore, no objection was taken at the proper time to the mode of proof of the decree in question, it must be taken to have been legally established; and, as we have seen, its effect was -to vest the title of the grantee, Hinch, in Ayres, whose title it is not questioned the defendant has.

The defendant having shown a valid legal title to the land in question, was under no necessity to invoke the aid of the statute of limitations, or the supposed acts of recognition or confirmation of his title, or any supposed equities arising out of the facts of his case; and the rulings of the court upon those questions become wholly immaterial. There may be error in those rulings; but they are upon immaterial questions in no way affecting the merits of the case. The jury could not legally have returned a different verdict; and it is not the practice of the court to reverse a judgment merely for the purpose of correcting the errors of the court below upon abstract and immaterial questions, which can have no proper influence in the final decision of the case.

We are of opinion that there is no error in the judgment, and it is affirmed.

Judgment affirmed.

Bell, J., did not sit in this case.