Rigsby v. Galceron , 15 Tex. Civ. App. 377 ( 1897 )

The issue involved in this appeal is between Josephine Galceron and Mrs. C.C. Thompson, the appellees, and G.M. Sutherland, W.M. Robertson, and Elizabeth Bowden, appellants. It involves the title to 320 acres of land patented to J.W. Robertson.

The appellants claim by virtue of inheritance from Robertson; the appellees, by virtue of a chain of title the initial link in which is an alleged transfer to John D. McLeod by Robertson, the original grantee of the certificate under which the land was located. This transfer is assailed by affidavit of forgery, and the questions presented for our consideration refer solely to the action of the court in holding it to be genuine.

The certificate in question bears date January 4, 1838, and was issued by Barnard E. Bee, Secretary of War, to J.W. Robertson or assignee. It bears the following indorsements:

"For value received I hereby transfer all my right and title to the within certificate of land to Jno. D. McLeod agreeably to and

"J.W. ROBERTSON, "By his attorney, J.G. Welshmeyer.

"Approved. "Barnard E. Bee, Sec. War."

"I certify the foregoing to be correct.

"J.G. WELSCHMEYER."

"I transfer all the claim I have to the within property to Elizabeth Blanden, her heirs, administrators or executors.

"JNO. D. McLEOD."

"Witness:

"Wm. McCooke, "T.F. Brewer."

The assailed transfer is that signed, "J.W. Robertson, by his attorney J.G. Welschmeyer."

We find that the evidence was such as to justify the court in the conclusions imported by its judgment in this case, that while the signature of Welschmeyer to the transfer in which he purports to act as the attorney of Robertson was not his true signature, it was nevertheless signed in that connection with his consent, approval, and as his act; that though the transfer bears no date, it was much more than thirty years old at the time that it was introduced in evidence, as it appears that Welschmeyer, whose signature is found to have been attached to the transfer with his approval, as above indicated, died about the year 1840, or prior thereto; that acts of ownership over the certificate were exercised by Mrs. Elizabeth Blanden and those representing her from 1840 to 1866; that the certificate itself, with these indorsements, has been in the Land Office since 1874; and that the transfer is free from suspicion.

Thus finding, we overrule the assignments of error complaining of the action of the court in admitting the transfer in evidence. Hicks v. Shinn, 68 Tex. 278; Ammons v. Dwyer,78 Tex. 639; Chamberlain v. Showalter, 5 Texas Civ. App. 226[5 Tex. Civ. App. 226]; Kellogg v. McCabe, 38 S.W. Rep., 542.

Also, as the transfer is an ancient instrument, as it comes from the proper custody, and is free from suspicion, the court was justified, under the circumstances above detailed, in presuming the power from Robertson to Welschmeyer under which it purports to have been executed. Watrous v. McGrew, 16 Tex. 513 [16 Tex. 513]; Harrison v. McMurray, 71 Tex. 128 [71 Tex. 128]; Williams v. Hardy, 21 S.W. Rep., 269.

The judgment is in all things affirmed.

Affirmed.

Writ of error refused.