Crosby v. Ardoin , 1912 Tex. App. LEXIS 611 ( 1912 )

I do not agree with my Associates in affirming this case.

This suit was instituted by appellant filing her action in trespass to try title to recover the land in controversy. Appellees answered by plea of not guilty and for affirmative relief filed a cross-action of trespass to try title for the recovery of the land. To the cross-action appellant answered by plea of not guilty and specially pleaded that the transfer from "W. C. Stanly to Thos. B. Huling" and the certificate of acknowledgment thereto were forgeries. The case was tried before a jury. After the parties had introduced all their testimony, the appellant, with leave of the court, took a nonsuit of the original action of trespass to try title. Thereupon, by motion of appellees, the court peremptorily instructed the jury to return verdict for them, which was accordingly done, and upon which verdict judgment was rendered.

The appellees, to show title, introduced in evidence a certified copy of the deed records of a purported transfer of the original certificate from W. C. Stanley to Thos. B. Huling, which transfer is dated January 1, 1820, and appears to have been acknowledged before John Hamilton, notary public, Jasper county, Tex., on July 2, 1853, and recorded in Book B, page 37, of the deed records of El Paso county. The date of the filing and of the recording of said instrument does not appear from the certified copy or from the record of said instrument. On the trial, however, it was proved that an instrument was recorded in Book B, May 11, 1859, on pages 17 and 18, and that another instrument was recorded in the same book November 12, 1860, on pages 149 and 150. This proof would indicate that the instrument was recorded in said book some time between the two dates mentioned. The certified copy of the transfer and acknowledgment, as introduced in evidence, is as follows:

"The Republic of Texas, County Jasper.

"Know all men by these presents, that I, William C. Stanley of the county of Houston and republic aforesaid in and for the consideration of six hundred dollars to me in hand paid by Thomas B. Huling of the county of Jasper and republic aforesaid, the receipt whereof is hereby acknowledged, do this day grant, bargain, sell, alien, convey and confirm unto the said T. B. Huling, his heirs and assigns all my right, title, and interest and estate of me and my heirs and assigns in and to all my headright certificate of one league and labor of land granted to me by the board of land commissioners in and for the county of Houston and No. 173, on the 4th of October, 1838, to be located on any vacant land of this republic.

"To have and to hold the aforesaid certificate of one league and one labor of land to the said Thomas B. Huling, his heirs and assigns, to his and their use and behoof forever from me and my heirs and assigns forever, and I do hereby warrant and defend the aforesaid certificate to the said purchaser his heirs and assigns from me and my heirs and assigns forever and each and every person or persons lawfully claiming the same in any way and I do hereby warrant the same to be free and clear of all encumbrances and as such I sell the same to said purchaser.

"Given under my hand and seal this first January A. D. eighteen hundred and thirty-nine. W. C. Stanly [Seal.]

"Test: L. S. Waltof.

"The State of Texas, County Jasper.

"Personally appeared before me John Hamilton, notary public in _______ for the county and state aforesaid W. C. Stanley to me well known and acknowledged the signed, sealed delivered the within deed for the purposes considerations therein mentioned to the end.

"Given under my hand and seal of office this 2d day of July, A.D. 1853.

"John Hamilton.

"N. P. Jasper county, Texas."

Upon the trial of the case affidavits were made and duly filed by appellant attacking this transfer and the acknowledgment thereto as forgeries. By the filing of the affidavits, the burden of proving the genuineness of the said transfer and the acknowledgment thereto and of the execution of each was placed upon appellees, which proof would have to be made as at common law. Both parties are claiming title to the land from William C. Stanley as the common source. I think it is the established law that, when the appellant took her nonsuit to enable the appellees to recover as against her, the burden of proof was then shifted to them; and also to enable the appellees to recover as against the appellant they are required to do so by virtue of the strength of their own title, and not by any weakness of the appellant's title. Before the appellees offered in evidence the "Stanly-Huling" transfer, the appellant had proved, in making out her case: First. That the land in controversy had been patented by the state of Texas to William C. Stanley by virtue of duplicate certificate No. 2145/2246 issued by the Commissioner of the General Land Office on October 30, 1851, in lieu of headright certificate No. 173 issued by the board of land commissioners of Houston county on the 4th day of October, 1838; this patent was filed for record In El Paso county March 6, 1860, and recorded in Book B, pages 77 and 78, on March 28,1860. Second. On October 14, 1851, William C. Stanley of the county of Angelina, executed and delivered to Adolphus Stern a general power of attorney, empowering the said Stern to receive from the Commissioner of the General Land Office a duplicate certificate for the league and labor of land, which he was entitled to by virtue of the original certificate, and to receive patent therefor; and also to sell, alien, and convey the certificate to any person or persons, with power of substitution, and confirming all acts which said attorney may do in the premises This instrument was witnessed by two persons subscribing themselves as such, and was duly acknowledged before Joseph Herrington, chief justice of Angelina county, Tex., and recorded in Book B. page 80, of the deed records of El Paso county, Tex. Third. On November 17, 1851. Adolphus Stern, as attorney in fact for William C. Stanley, by virtue of the above power of attorney, conveyed to M. T. Johnson, reciting a consideration of $1.000 paid, "the headright certificate of the said William C. Stanley for one league and labor of land issued on the 30th day of October, 1851, by Geo. W. Smythe, Commissioner of the General Land Office, of the state, No. 2145/2246, being a duplicate issued in lieu of No. 173 issued by the board of land commissioners of Houston county to the said Stanley on the 4th day of October, A.D. 1838." This conveyance was made with covenants of warranty, duly acknowledged by said Stern as attorney in fact for William C. Stanley before Francis F. Duffel, notary public, Travis county. This instrument appears of record in Book B, page 83, of the deed records of El Paso county, Tex. The appellant by proper proof connected herself with the foregoing conveyances by regular chain of title. Fourth. It was further proved that the land in controversy was located, surveyed, and patented in the name of William C. Stanley by virtue of the duplicate certificate as issued October 30, 1851. Fifth. That M. T. Johnson entered into a contract, after the said duplicate certificate was conveyed to him, with John Hancock and Josiah F. Crosby for the locating, surveying, and patenting of the land in controversy by virtue of said duplicate certificate, and that said land was in fact located, surveyed, and patented through the efforts and at the cost and expense and at the instigation of the said last-named parties. Sixth. That all of the land office fees incurred in obtaining the patent were paid by the said M. T. Johnson, and that the land commissioner, after the issuance of said patent, delivered same to him and that the original patent was found to be in the possession of the said Josiah F. Crosby at the time of his death. Seventh. It was further shown by the evidence that said Crosby and his predecessors in title claimed ownership of the duplicate certificate and the land located thereunder since November 17, 1851, the date when the duplicate certificate was transferred to the said M. T. Johnson, and that they paid taxes thereon and dealt with the land as their own.

From the foregoing, I think, in the absence of any testimony to the contrary, that the Commissioner of the General Land Office in issuing the duplicate certificate recognized, and it would be presumed, that William C. Stanley, to whom the original certificate No. 173 was issued, was at said time the owner thereof. The act of January 14, 1840 (Gammell's Laws of Texas, vol. 2, p. 242), provides as follows:

"Sec. 2. That any person having lost any of the above mentioned certificates * * * shall previous to applying for a duplicate of the same, make or cause publication to be made for sixty days, in at least one newspaper published at the nearest place where the individual resides, which publication shall describe as correctly as possible the paper lost. * * *

"Sec. 3. That when any person shall apply for a duplicate of any claim against the government, he shall be required to prove that he has fully complied with the preceding section of this act, and shall take and subscribe an oath to the following effect: That he was the just owner of the claim, that he had never sold, alienated or transferred the same in any manner, that it has been lost, and that since lost, he has neither known or heard of the same.

"Sec. 4. That should any land warrant, discharge or certificate for a head-right of land, for which a duplicate had been issued, be ever after presented to the Commissioner of the General Land Office * * * and should it appear that such land warrant, discharge or certificate for a head-right of land was not lost, but was sold or in any way alienated by the person who obtained the duplicate thereof it shall be the duty of the * * * Commissioner of the General Land Office to give information of the fact to one of the district attorneys who shall prosecute the aforesaid person for perjury; and should he be convicted, in addition to the statutory punishment for that crime, he shall be incapable of ever after holding within, or enjoying any of the privileges of a citizen of this republic."

The amendatory act of May 11, 1846 (Gammell's Laws, vol. 2, p. 1532) provides as follows, and should be read in connection with the foregoing act: "That any person who may have lost any land warrant, discharge, certificate for a headright claim emanating from the government, or any special grant from the Congress of the Republic of Texas, and entitling the holder to a bounty of land, shall be entitled to demand and receive a duplicate of the same, so lost, by complying with the provisions prescribed in the act above recited."

It is also to be presumed, for the purposes of this suit, that the Commissioner of the General Land Office in issuing the duplicate certificate complied with the requirements of the law, and that before the issuance of said duplicate certificate the said William C. Stanley had in fact made advertisement in some newspaper, as required by law, of the loss of the original certificate No. 173, had made proof satisfactory to the land commissioner and had also made and filed an affidavit with the said commissioner that he was the owner of the original certificate and that he had not at said time sold, alienated, or transferred the same in any manner; that it had been lost, and that since lost he has neither known or heard of the same.

Appellant's fifth assignment of error, with the several propositions and statements under each proposition, raises the issue as to the admissibility in evidence of the said "Stanly-Huling" transfer, and from the evidence introduced I think it is conclusively proved as a fact in this case that William C. Stanley is the party to whom the original certificate No. 173 was issued and to whom the duplicate certificate was issued and to whom the original patent was issued. From an examination of the Stanly-Huling transfer it will be seen that it is signed "W. C. Stanly"; the certificate of acknowledgment, which is the only proof we have as to the execution of the instrument, states that "W. C. Stanley" acknowledged same. This has been held to be insufficient to authorize its registration. Stephens v. Motl, 81 Tex. 115, 16 S.W. 731; McKinzie v. Stafford, 8 Tex. Civ. App. 121, 27 S.W. 790. In the case of Stephens v. Motl, supra, it was held that a deed signed by Jonas Butler, when the certificate recited "appeared James Butler, Esquire, to me personally known, and acknowledged the foregoing conveyance to be his act and deed," was held to be insufficient to authorize its registration. In McKinzie v. Stafford, supra, it was held that an acknowledgment by "F. M. McKenzie" of a deed signed by "F. M. McKinzie" is insufficient to authorize its registration.

From the foregoing decisions it would seem that a presumption should not be indulged in which is contrary to the facts as shown in the instrument. Unless, therefore, we indulge in presumptions, we certainly cannot say that "W. C. Stanly" is one and the same party as "W. C. Stanley," nor should we presume that the party signing the instrument as "W. C. Stanly" meant to sign it as "W. C. Stanley," nor do I think it would be reasonable to presume that the notary taking the acknowledgment knew better the name of the party who signed the instrument than did that party himself, and to presume that the clerk in making the record of the instrument made a mistake in copying the name of the grantor would be the making of a mere guess. I think, under the law, that the presumption would have to be indulged in that the clerk actually made a correct copy of the original instrument as presented to him for registration, and that the grantor in said instrument was in fact named "W. C. Stanly" and not "William C. Stanley," the owner of the original certificate No. 173. I think it is but a reasonable presumption that the party signing the instrument knew how to write his name correctly, and that he did do so. If I am correct in holding as a fact that William C. Stanley is the name of the party to whom the original certificate was issued, the contention as made by the majority of the court that we are left to deal in inferences as to the correct name is eliminated, and the necessity of establishing a proposition by circumstantial evidence, the circumstances from which the inferences must be drawn, has been obviated and we are no longer left to conjecture. It follows, then, if I have drawn the proper deduction as to the holding of the above authorities, that the "Stanly-Huling" transfer was not entitled, under the law, to registration, and without such registration the certified copy would be unauthorized and inadmissible in evidence in this case, and the title of appellees would fall by virtue of its own weakness. It would also follow that the Stanly-Huling transfer would be inadmissible in this case until it was shown as a fact, or that proper evidence had been introduced which would be sufficient for the jury to find as a fact that "W. C. Stanly" was one and the same party as "William C. Stanley." Such evidence was not introduced. The instrument on its face, in the light of the affidavits of forgery filed, shows that it is not free from suspicion, and in the light of the testimony which was before the court and jury, when the "Stanly-Huling" transfer was offered, it was inadmissible. The further fact that the "Stanly-Huling" transfer purports to have been acknowledged on July 2, 1853, and nearly 20 months after the said William C. Stanley had executed a general power of attorney dated October 14, 1851, to Adolphus Stern, and in view of the further fact that the duplicate certificate was issued October 30, 1851, which required a compliance with the laws by the Commissioner of the General Land Office, also casts suspicion upon said instrument sufficient, I think, in the absence of other proof on the part of appellees, to hold said instrument inadmissible.

The record does not disclose that there was an affidavit of the loss of the original "Stanly-Huling" transfer filed three days before the commencement of the trial, or that notice was given the opposite party of such filing, as required by article 2312 of the Revised Statutes of 1895. This should have been done as a predicate for the introduction of the certified copy. Gann et al. v. Roberts et al., 32 Tex. Civ. App. 561,74 S.W. 950. From the assignment of error and proposition thereunder, it is not quite clear that this question is raised.

The seventh assignment of error and propositions thereunder raise the question as to the sufficiency of the evidence to have required the trial court to have submitted the issues in the case to the jury, and, since the trial court peremptorily instructed the jury to return verdict for appellees, the inquiry necessarily is one as to whether there are such issues in the case. As to whether there is any evidence in a case, or what its legal effect may be, is to be determined by the trial court. If there is no evidence to support an issue, it is the duty of the court to so instruct the jury, but, if there is any evidence to support the issue, the issue must be submitted by proper charge to the jury who are the exclusive judges of its weight and sufficiency, however slight it may be, and though it is circumstantial. It is only when the testimony is such that but one conclusion can be deduced from it by ordinary minds that the question at issue becomes one of law and the court is authorized to peremptorily instruct a verdict upon it. Passmore, Instructions to Juries, § 165, p. 111. Also, there is an entire absence of testimony which in any manner indicated that Thos. B. Huling was ever in possession of the original certificate, unless it be shown by the certified copy of the "Stanly-Huling" transfer. There is also an entire absence of testimony which in any manner shows or tends to show that said Huling did anything to obtain the duplicate certificate, or to locate, survey, or patent the land under the original certificate, or under the duplicate certificate. There is an entire absence of testimony in the record which shows any assertion of title or claim on the part of said Huling during his lifetime to the original certificate, or to the duplicate certificate, or to the land in controversy, further than is shown by the certified copy of the "Stanly-Huling" transfer.

If I should be wrong as to the admissibility in evidence of the "Stanly-Huling" transfer as is contended by my Associates, then, under the evidence, said transfer, by reason of the fact that it is an ancient document, at most, should be admitted in evidence only as an earnest of the issue, and when so admitted, it being attacked by affidavits of forgery, the question of its genuineness is made an issue by the testimony, and such question, under proper instructions, should be submitted to the jury for its determination. Beaumont Pasture Co. v. Preston Smith, 65 Tex. 448. The circumstances in this case, which are evidenced by authentic instruments of writing which tend to contradict and impeach the genuineness of the "Stanly-Huling" transfer, raise, in my mind, such an issue as should have been submitted to the jury. In the regular course of events, the question might well be asked, Why would Huling remain acquiescent, inactive, and silent from the 1st day of January, 1839, the date of the "Stanly-Huling" transfer, until his death, without making it known that he had an interest in the certificates or in the property located thereunder? It appears that "W. C. Stanly" signed the instrument, and, under any construction which the different minds see fit to place upon same, whether the name "W. C. Stanly" was an inadvertent mistake of the officer recording same, or otherwise, still the fact itself remains unexplained by any evidence in this case, and makes an issue for the jury. And, too, the further fact that the transfer was not acknowledged for nearly 14 years after its date, and for nearly 20 months after the issuance of the duplicate certificate, would raise, I think, an issue as to when it was really executed. Both parties are claiming under the duplicate certificate, and, necessarily, the things done to procure the duplicate would be binding upon each in the absence of testimony showing excuse or explanation therefore. One should not be allowed to enjoy the fruits of a transaction without being bound by the acts of the parties or of the proceedings which brought about the success of said transactions.

Another issue which is clearly raised by the evidence is the one of an innocent purchaser for value and without notice on the part of M. T. Johnson of the duplicate certificate. It is true the original certificate, and the duplicate certificate, for that matter, is personal property, and the title may pass by making manual delivery with intention of parties that title shall pass, but in the instant case title to the original certificate No. 173 is sought to be proved by an instrument in writing, the only evidence of which is shown by the certified copy introduced in evidence. Hence the only notice which of necessity is purely constructive, but in law is as binding as if it were actual notice, is the record of the instrument itself. It clearly appears from the evidence in the case that the power of attorney from Stanley to Stern is recorded in Book B, page 80, of the deed records in El Paso county; that the transfer of the duplicate certificate by virtue of said power of attorney is recorded in Book B, page 83; and that the original patent, which issued by virtue of the duplicate certificate, is of record in Book B, pages 77 and 78. The evidence does not show that the "Stanly-Huling" transfer was, as a matter of fact, filed before the several instruments enumerated. It could have been filed at a later date and yet recorded first. At least an issue is presented, unexplained by evidence which would remove doubt. From the evidence in the case, it is undisputed that the appellees' right to a recovery depends upon the "Stanly-Huling" conveyance of the original certificate No. 173, as made January 1, 1839, and which is purported to have been acknowledged July 2, 1853. The land in controversy was located, surveyed, and patented by virtue of the duplicate certificate No. 2145/2246, all of which was brought about by the appellant and her predecessors in title. It is not shown that Huling, or any one claiming under him, participated in obtaining the duplicate certificate or of locating, surveying, or obtaining the patent. It appears that the interest of the parties was adverse in that appellant's predecessors in title claimed the ownership of the duplicate certificate and the land located and patented thereunder. It has been held that, in so far as Huling's rights are affected by the unauthorized location of land under the certificate of which he is the owner, he could ratify or adopt the unauthorized location of said land and of the issuance of the patent therefor; or he could make a relocation of the land at such time and at such place as he so desired by virtue of his original certificate. This being true, it devolved upon Huling to make some overt act showing that he either ratified or adopted the acts of the adverse claimants, and testimony was required to show this. The only evidence we have before us is the copy of the "Stanly-Huling" transfer. I am of the opinion that it, standing alone, is insufficient, and the issue of stale demand should have been submitted to the jury. I do not think the case of Barroum v. Culmel, 90 Tex. 93,37 S.W. 313, and other cases as cited by my Associates in the majority opinion, are in conflict with the view herein expressed.

I also differ with my Associates as to the probative force of the evidence in this case. Issues are raised by the evidence in this case which ordinary minds are apt to differ as to a proper conclusion to be reached, and for this reason the case should have been submitted to the jury.

I also disagree with my Associates as to the admissibility in evidence of the advertisement of the lost certificate and of the affidavit made by William C. Stanley, both of which, it appears, were made as required by law, and for the express purpose of obtaining the issuance of the duplicate certificate. The instruments are certainly archives of the general land office and are muniments of title. The appellees are relying upon the title which was procured by virtue of said instruments, and, so relying, they should not be heard to say that, because the instruments show a condition adverse to them, they should not be, for that reason, admitted in evidence. I think they should be admitted to show the history of the transaction, and of necessity they are evidence upon the issue of forgery. Ansaldua et al. v. Schwing et al., 81 Tex. 198, 16 S.W. 989; McNeill v. O'Connor, 79 Tex. 227, 14 S.W. 1058; McKee v. West,55 Tex. Civ. App. 460, 118 S.W. 1135: Trimble v. Burroughs, 95 S.W. 614. I do not think the illustration given by my Associates, or the cases cited, are in point.

I do not deem it necessary for me to enter into a discussion of the evidence further than to say that other deductions might be drawn therefrom. An examination of the "Stanly-Huling" transfer shows the omission of the notary seal; also that the residence of Stanly, as shown by the instrument, at the date of its execution on January 1, 1839, was in Houston county, yet it shows to have been made on said date in Jasper county, and some 14 years thereafter it would appear that the acknowledgment was taken by John Hamilton in Jasper county, yet the Stanley-Stern power of attorney slows that Stanley's residence was at said date of its execution in Angelina county. Other deductions might be made.

I do not agree altogether with my Associates as to their rulings upon the sufficiency of certain assignments, propositions, and statements, but in the view which I take of the case the issues are sufficiently raised and should be decided without resorting to the decisions and a strict construction of the rules which govern the court to show wherein the assignments fail to comply with such decisions and rules.

For the reasons herein assigned, I think the case should be reversed.