Lemberg & Allen v. Cabaniss , 75 Tex. 228 ( 1889 )

HOBBY, Judge.

Appellees, who were the plaintiffs in the court below, proved that the certificate was issued and the land patented to the heirs of Albert Cabanis, who, as one of the colonists of Fisher & Miller’s Colony, was entitled thereto. They established the further fact that they were the heirs of said Cabanis. This constituted a prima facie case, which authorized a decree in their favor for the land sued for, in the absence of proof by the defendants that the plaintiffs or their ancestor had parted with the title, or that adverse rights had been acquired by limitation. Appellants claim that the finding of the court in favor of the appellees is not supported by the testimony, because the certificate issued to the heirs of Albert Cabanis, and they (the plaintiffs), as well as their ancestor, spelled the name Cabaniss, terminating the surname with two s’s instead of one.

This assignment, we think, is untenable. Similarity in names is said to afford proof of identity, especially in the absence of evidence raising a doubt as to such identity of the person. 1 Greenl., sec. 575, and note; Chamblee v. Tarbox, 27 Texas, 145; McRee v. Brown, 45 Texas, 506; Shields v. Hunt, Id., 424. The theory of appellants seems to be that as the heirs of Albert Cabanis were'entitled to only one certificate for 640 acres of land, by reason of the fact that their father was one of the colonists of Fisher & Miller’s Colony, and the evidence showing that two certificates, each for 640 acres, had been issued to them as such heirs, plaintiffs (the heirs) did not show to which they were entitled.

The evidence showed that in 1850 a certificate, No. 497, for 640 acres was issued to the plaintiffs, as the heirs of Albert Cabanis, a German colonist of the colony referred to. This was located upon the land in. controversy. Subsequently, it appears from the evidence, another certificate for 640 acres was issued in 1854 to said heirs, which was located in Mason County. This latter tract is not involved in this suit, and the plaintiffs’ title to it is not established by the judgment herein.

If more than the quantity of land was granted to appellees than they were entitled to under the law, that fact would not affect their right to. such portion of the land as they showed themselves justly entitled to in this suit. And this is not a question the appellants could inquire into, in the absence at least of some evidence of right or title to the land in controversy in them.

We see no error in the judgment, and think it should be affirmed.

Affirmed.

Adopted November 19, 1889.