Smelser v. Henry , 199 S.W. 1151 ( 1917 )

(after stating the facts as above). The first deed in the chain of title offered by the plaintiff was that of William Burnsides to A. R. Moores, dated in 1854, and the next was that of a partition deed between Hogan, as guardian, and A. R. Moores and Jarrett, dated September, 1859, and the patent from the state to the land was not issued until December, 1862, and then to the heirs of Mary Burnsides. There being no evidence in the record of a previously issued certificate entitling Mary Burnsides to land as a headright, and of a sale or transfer by her of the certificate or of an interest therein to William Burnsides, there is failure of any right in William Burnsides to pass any title through his deed from Mary Burnsides. And as during the lifetime of a person no one can have a vested or certain interest in his estate (Clark v, Railway Co.,27 Tex. 100), it may not be said from the record here that the deed of William Burnsides in 1854, and of Hogan, as guardian, and Moores in 1859, passed, in the character of heirs, an interest in the Mary Burnsides estate. For from the record here it may not be said that Mary Burnsides died before 1862. The evidence in the record even challenges the inference of her death in 1862, for the witness Kinney testified:

"I came here with my stepfather in 1863, and I have lived in that country ever since. I don't know whether William Burnsides is living or dead, and I don't know whether Hogan is living or dead. Mary Burnsides was not dead at that time; I don't know when she died."

And there is no evidence going to show that William Burnsides was a son or heir of Mary Burnsides so as to pass any after-acquired title in virtue of his warranty deed in 1854. It is believed that the court did not err in giving a peremptory instruction, and the assignments are overruled.

In order for the testimony of the witness Kinney, as complained of in bill of exception No. 1, to be admissible as evidence, it must appear that the declarant Burnsides is dead. 1 Greenleaf on Evid. § 114b; 16 Cyc. 1231; Wallace v. Howard, 30 S.W. 711. For statements by a living third person concerning himself and family connections are hearsay. Nehring v. McMurrain et al., 46 S.W. 369. And a presumption of the death of William Burnsides and Hogan may not be predicated, it is believed, upon the evidence in the record. Latham v. Toombs, 32 Tex. Civ. App. 270,73 S.W. 1060; Wells v. Mar graves, 164 S.W. 881.

The judgment is affirmed.