Nicholson v. Horton , 23 Tex. 47 ( 1859 )

Wheeler, C. J.

The counsel for the appellant is mistaken in supposing that the land office copy of the title produced in evidence by the defendants, is not a copy of the original title. It is certified as such by the commissioner, is upon the proper seal, and is wanting the certificate appended by the officer to the testimonio. The instrument appears, on its face, to be the first original, or protocol; and if a doubt remained that it is so in fact, the doubt would be removed by a comparison of it with the testimonios of other titles issued by the same officer, in the records of other cases, now before the court. It was properly admitted in evidence. (Wheeler v. Moody, 9 Texas Rep. 372; 7 Id. 348; Id. 322.)

The court did not err in holding, in effect, that the production of the copy from the land office was primd facie evidence that the original was deposited in that office in due time. This was in accordance with the decision of this court in Byrne v. Fagan, 16 Texas Rep. 391. It was there held, in the case of a conflict between an elder grant, and a patent, that the production of the testimonio by the claimant under the elder grant, raised the presumption that the original was deposited in the land office in due time; and the patentee, in order to claim as an innocent purchaser from the government, without notice of the previous grant, must rebut that presumption, by proof that the original was not so deposited. And this is entirely consistent with the case of Guilbeau v. Mays, 15 Texas Rep. 410. The plaintiff, by his petition, took upon himself the burden of proving that the defendant’s title was not deposited in the land office ; and if the fact was as alleged, he should have come prepared with proof to make good his allegation. The title having been found in the proper place of deposit, in the absence of countervailing evidence, the presumption must be, that it was placed there in proper time.

The rulings upon the admissibility of evidence offered to disprove other notice, by occupation of the premises, or land marks upon the ground, and to prove the date of the plaintiff’s survey, became immaterial by the failure of the plaintiff to produce any evidence tending to rebut the evidence of notice afforded by the proof that the original title was of record in the General Land Office. That was sufficient to affect the junior patentee with notice of the elder and superior title of the defendants; and had the proposed evidence been received the result must have been the same.

There is no error in the judgment, and it is affirmed.

Judgment affirmed.