Frizzell v. Johnson , 30 Tex. 31 ( 1867 )

Smith, J.

The defendant below objected to the introductign in evidence of the title papers of the plaintiff, without indicating any special grounds affecting either of the deeds in form or its legal effect; this objection is overruled, and it is assigned as error. If there be any defect of form, or in the legal effect of either of the deeds offered in evidence, that defect should have been specified, in order that the court might advisedly pass upon it, and the party have an opportunity of removing it if he could; this not having been done, and the particular error of the court not being pointed out, we see no reason to complain of the courts overruling the objection.

The second assignment of error is obnoxious to the same objections. The defendant does not appear to have specified any grounds of objection to the reading of the depositions in evidence. The particular ground of objection should have heen set forth, and, this not having been done, the exception was properly overruled.

Johnson shows a consecutive chain of transfer to the land in suit, beginning with a conveyance from the grantee of the government, Juan N. Boden, to Pollett & Thorn, dated October 20, 1835. The defendant, in 1853, obtained a conveyance to one-half of the league from the alleged heirs of said Boden, then deceased, and claims to be a purchaser for value paid, and without any notice of the former transfer of the title by said Boden to Pollett & Thorn. There is no evidence in the record of this cause that the defendant did have any knowledge or notice, in fact, of the transfer from Boden. But the conveyance from him was proved by the assisting witness, E. Albarado, before the deputy clerk of the county court of Nacogdoches county, authenticated and recorded by him in his offi'ce on the 21st March, 1838. The land then lay in that county. There are no special grounds urged against the regularity of this registration, or reason shown why it did not operate as notice to the defendant at the date of his purchase in 1853. It may have been contended, as intimated in the case of Miller v. Thatcher, 9 Tex., 486, that the deputy clerk had no authority to authenticate the conveyance for record; but that suggestion has been overruled since, in the ease of Rose v. Newman, Austin T., 1861, [26 Tex., 131,] and it was held, that the deputy clerk had the same power to take the proof of, authenticate, and record a deed at that date as the clerk himself.

Cherokee county, in which the land is now situated, was formed by act of April 11, 1846, and it may have been supposed that it was necessary to register the conveyance from Boden to Pollett & Thorn in that county. The contrary, however, has been settled by this court in the case of McKissick v. Colquhoun, 18 Tex., 153, 154.

The defendant’s plea of three years’ limitation was not sustained by evidence of more than one year’s possession of the premises, and it is not insisted that less than three years of continuous and adverse possession in person, hy tenant or agent, will sustain the plea. The defendant contends, however, that his motion for a new trial should have been sustained upon the ground of newly-discovered evidence of the fact of a continuous adverse possession of the premises for three years before the institution of this suit by the defendant and those claiming under him, to wit, Shields, Murray, and wife. If it be admitted that the defendant had such a title or consecutive chain of transfer from the sovereignty of the soil, as is defined in the three years’ statute of limitation, and that the witness Duren would have established the three years’ possession, it does not appear that the affidavits of the defendant or the witness Duren were read to or considered by the court on the motion for a new trial. This should be made to appear by bill of exceptions or statement of facts, for otherwise this court cannot know upon what evidence the district judge based his ruling upon such a motion for a new trial.

On motion for a new trial on account of newly-discovered evidence, the party making it must make it appear, first, that the evidence came to his knowledge since the trial; second, that it was not from want of due diligence on his part that it was not sooner obtained; third, that it is not cumulative, and will probably change the result upon a new trial. (4 Tex., 319; 19 Tex., 101; 4 How., 76; 21 How., 171.)

If the defendant had held the possession of the premises for three years by himself and tenants, we must presume that the fact was fully known to him before the trial, and, with proper diligence, he could have proved it by his tenants or others in the neighborhood of the land, and there is no reason shown why these tenants were not consulted and had at the trial. They are not shown to be dead or absent from the State. The defendant does not state in his affidavit that'the facts he expects to prove by the witness Duren are true, but that he is informed by Duren that" he will thus testify, and that he knows of no other living witness by whom he can prove these facts, communicated to him by the witness after the trial.

In answer to this it might be urged, that the tenants, perhaps, would not, nor would-any other in the neighborhood, thus testify, nor has he himself; and hence, he could with safety state that this is the only witness by whom he can prove the continuous adverse possession. However, be that as it may, he has not made oath to the truth of the alleged new matter, nor does he show the exercise of due diligence to discover the evidence before the trial, and, in addition to this, at best it appears to be only cumulative, and we cannot say of that character that would produce a change on a new trial. (3 Gr. & Wat. on New Trials, 1046; 21 Tex., 171.)

We see no error for which the judgment should be reversed, and it is therefore

Aeeirmed.

Donley, J., having been of counsel did not sit in this case.