Jones v. Reus

JAMES, Chief Justice. Conclusions of Fact. — 1. That the land in controversy was a part of a one-half-league survey, patented November 20, 1873, to Hezekiah Bissell, assignee of Julian Diaz. That the one-half-league certificate by which this location and patent exist was an unlocated balance of a league and labor headright certificate number 66, issued to Julian Diaz, the other half having been located in 1841 or previously, and in 1841 this unlocated balance certificate was issued. 2. That in 1839 the certificate was conveyed by the administrator of Hezekiah Bissell’s estate to Enoch Jones, from which we conclude that the portion of the certificate applied to this land was at that time unlocated. 3. On December 23, 1854, I. A. and G. W. Paschal conveyed to de *631 fendant Reus a part of the land in controversy, amounting to 127 acres thereof, and Reus has since his purchase thereof resided upon the land in such manner as to satisfy all the requirements of ten years limitations; Enoch Jones having died in 1863. 4. On August 1, 1874, Gr. W. Paschal, Jr., conveyed to defendant Reus of the land in controversy 234 acres, which adjoins the above portion on the north. This deed was duly recorded, and upon its execution he took actual possession of this land, and has since occupied the same, paying taxes, in such manner as to satisfy the statutes of five and ten years limitations as to plaintiffs, except Mrs. Washiúgton and Mrs. Adams, who were married prior to the purchase, and who represented an undivided interest of 58£ acres of the tract, assuming that they had title. 5. On January 26, 1882, the administratrix of I. A. Paschal conveyed to defendant Reus the remainder of the land in controversy, amounting to 165 acres, who recorded this deed and went into occupancy of this tract at that time, and has been thus in possession, paying taxes, ever since. The suit was filed on March 19, 1886. 6. On March 1,1881, a patent appears to have been issued to the heirs of Jacob Chappel, which covered a part of the above 165 acres, conflicting therewith. This title was acquired by defendant Reus on June 1, 1883. Inasmuch as Reus’ possession under this conveyance was not long enough to fulfill the three years statute, we conclude that it is not entitled to be considered for any purpose. 7. With respect to the 165 acres tract mentioned in the two clauses above, we see nothing that would allow the same to be adjudged to defendant by reason of the statutes of limitations. 8. There was no written transfer of the certificate or land from Enoch Jones or his heirs. There was in evidence, however, the following circumstances, upon which the court submitted to the jury the question whether or not Enoch Jones transferred the certificate to I. A. and Gr. W. Paschal by paroi, to-wit: It was made to appear that Enoch Jones and the Paschals had an agreement, of date March 18, 1848, and another of date February 6, 1849, looking to the joint acquisition of land certificates. There was in evidence a statement, of date April 28, 1855 (known in this record as exhibit A),' approved by Enoch Jones and the Paschals, the object of which was to define the rights of the parties with reference to the certificates; they were admitted in evidence under the agreement of 1848. The certificates were enumerated in this statement, among them “H. R. certificate number 66, of 2302 acres, issued from Bexar County; cost 8161.17; located on Juan Montes grant.” This document shows the Paschals to be entitled to one-third of the enumerated certificates and Enoch Jones to two-thirds, and shows that the Paschals were *632 then indebted to Jones $1339.07 by reason of the agreement of 1848, the terms of which agreement are not shown. Whether the Juan Montes grant was where the land in controversy is or not, does not appear. We conclude, however, that as the original certificate had been located in 1841, long before it was shown that the Paschals had any transaction with Jones concerning the land certificates, that the 2302 acres certificate number 66 mentioned in the exhibit A was the unlocated balance. The various certificates set forth in exhibit A aggregate 32,943 acres, and in the column under the head of general remarks Enoch Jones’ name is written on the line with four certificates, thus, “ E. Jones, October 1, 1857.” The aggregate of these four certificates is 8001 acres. On a line with another certificate of 2391 acres there appears written in said general remarks column, “ E. Jones to Edwards, January 23, 1851.” In the same column 14,133 acres appear generally as sold. There is nothing in the column showing disposition of the remaining 8418 acres. The other statement, known in this record as exhibit B, was made the same day, and has reference to the agreement of 1849, and enumerates certificates owned by the parties thereunder, and defines their respective interests. This makes no reference to the Julian Diaz certificate at all. It appears that the Paschals assumed to exercise control of the land by selling a part thereof to defendant Eeus in 1854, as aforesaid, by applying to the surveyor of Bexar County for a survey of the certificate in 1856. That Enoch Jones died in August, 1863, and that neither the certificate nor the land located thereby went upon the inventory of his estate, and that the land appears upon the inventory of the estate of I. A. Paschal, whose death occurred prior to November 14, 1873, the date not otherwise appearing. That the administratrix of I. A. Paschal, joined by George W. Paschal, instituted proceedings in the District Court of Bexar County, Texas, to compel the county surveyor of Bexar County to make the survey of the land by virtue of the aforesaid application made by I. A. Paschal in 1856 in respect to said certificate, and on November 14, 1873, the decreed was so made. That on November 20, 1873, the date of the patent, G. W. Paschal, Jr., who was the heir of George W. Paschal, procured the patent, making an affidavit of ownership of the unlocated balance certificate on same day, a certified copy of which affidavit was introduced' in evidence. That in 1874 and 1882 the sales were-made to Eeus by the Paschals as aforesaid. It does not appear that Jones-in his lifetime, or his representatives afterward, exercised any act of ownership in respect to said certificate or said land until the filing of this suit. Conclusions of Law. — The certificate being unlocated until 1856, it was until that time capable of being transferred without writing; and that such a transfer was made may be established by circumstantial evidence. It was held in Bounds v. Little, 75 Texas, 321, that the exist *633 ence of a deed could be shown in this manner; but in that case it was not allowed, because there was no preliminary proof of an effort to find the original, and without this, secondary evidence was held to be inadmissible. This preliminary proof need not be made in a case where the conveyance need not have been in writing, as with an unlocated land certificate. It was not improper to admit in evidence circumstances tending to show that the ownership of the certificate, while unlocated, had been transferred from Enoch Jones to the Pasehals. The court, by a correct ’ charge, distinctly submitted this issue to the jury. It would have been improper to present this issue had the circumstances been insufficient to lead to a conclusion that the ownership of the certificate had been changed. We can not say they were insufficient. On the contrary, they fairly lead to that inference. The verdict of the jury necessarily involves the finding that the ownership of the certificate passed to the Pasehals; and this disposes of all the questions raised, except such as are directed to the admissibility of the evidence and the correctness of the charges. It is claimed by the eighth assignment of error that the statement (exhibit B) was immaterial to any issue, because it does not purport to relate to the particular certificate in question, and its introduction was calculated to mislead the jury, and make them believe that in the opinion of the court it tended to prove that Enoch Jones had parted with his title to the certificate. Assuming it to have been immaterial and irrelevant, we fail to see how it could probably have had the effect claimed. Its tendency was more towards showing that the certificate had not been transferred than that it had, and we can not ascribe to it the influence that it is claimed to have had upon the jury. In establishing a fact by circumstantial evidence, latitude is allowed, and matters that are not admissible as direct evidence of the fact may become proper evidence when they are sought to be considered as tending to prove the fact. In this inquiry proof of transactions between Enoch Jones and the Pasabais in reference to land certificates would more clearly show a relation between them from which a transfer would spring than would be the case if no such relation were shown. We do not believe the testimony was irrelevant. The second assignment of error is in refusing to give the following charge: “ You are further charged, that the papers introduced show the title to the property to be in the plaintiffs, and you will find for the plaintiffs unless you believe from the evidence that they have not parted with their title, or that some of them can not recover by reason of the statute of limitations as heretofore charged.” This charge was rightly refused, because it would have excluded the consideration of any transfer by Enoch Jones himself. That plaintiffs had not conveyed the land *634 was clear, and the charge was practically a charge to find for all the plaintiffs who were not barred. The theory of plaintiffs in this case seems to be that the exhibit A evidences these facts: That an agreement, had been entered into in 1848, by which Jones should purchase land certificates and deliver them to the Paschals; that the Paschals were to pay Jones one-third of the purchase price and take one-third interest in the certificates, or the proceeds of the sales or of the land located; that Jones complied with his contract by purchasing 32,943 acres of certificates; '-that the Paschals did not pay the one-third of the purchase price, and that on April 28, 1855, the said Paschals were still indebted to Jones in the sum of $1339.07, the one-third of such purchase price, which has never been paid; and this state of facts appearing, appellants contend that the Paschals were not in a position to obtain by use of the certificate any title adverse to Jones or his heirs, as their claim would under these circumstances be held in subordination to the right of Jones, and defendant Reus must be charged with notice of this attitude of the Paschals, and also hold in subordination to the rights of Jones’ heirs. An examination will show that these premises are not founded in the facts. The agreement of 1848 was not in evidence, and we know not its terms; and it can not be said that there is any evidence showing that it was part of the contract that the Paschals were to receive the certificates for disposition. We recognize that if it had been shown that the Paschals had obtained possession of the certificate under an agreement with Jones which contemplated the location of the same for mutual account, in accordance with the terms of a contract between them, neither the Paschals nor those claiming under them could hold the certificate or the land so located, by limitations or otherwise, contrary to the right of Jones, until some unequivocal act of repudiation had taken place. But the facts necessary to lead to this conclusion do not appear. What appears is this: On April 28, 1855, the parties list the certificates they had acquired under an agreement they refer to as having been entered into on May 18, 1848, and ascertain their cost, and show that the Paschals are entitled to one-third and Jones two-thirds of them, and that the Paschals are indebted to Jones for one-third of the purchase price of the same, all of which appears under the signatures of E. Jones and I. A. and G. W. Paschal. The half-league and labor certificate in question appears to be one of the certificates therein mentioned. The paper also evidences, by subsequent entries in the column headed “General Remarks,” that many of the certificates were sold, and several of them went to Enoch Jones without sale. It appears to us that nothing in this paper is incompatible with the certificate in question having afterwards gone to the Paschals, and it is not inconsistent with the fact of the Paschals’ debt to Jones having been to some extent paid by the proceeds of the sales *635 made. We are of opinion that this paper does not leave the relation that existed between Jones and the Paschals of such a character as to give application to the principles invoked by the appellants. It was not the duty of the court to submit the case to the jury on this theory of appellants, unless such action had been asked. Only one charge was asked by appellants, and that was correctly refused; as above explained. The case was allowed to be submitted on the one issue of whether or not the certificate had been transferred or sold by Jones to I. A. and G. W. Paschal before location; and, as we believe, upon evidence which, though circumstantial, was sufficient to support the finding of the jury. Upon this view of the case, the errors in respect to the statutes of limitations become immaterial. The sixth assignment of error was to the introduction of an affidavit made by George W. Paschal, Jr., on November 1, 1873, on file in the General Land Office, to the effect that he was the just and legal owner of the unlocated balance certificate issued to Julian Diaz, which affidavit had evidently been made in the act of obtaining the patent; the objection being that it was immaterial and irrelevant. In respect to this testimony, the court charged the jury, that it could be considered as evidence by them only in reference to the identity of the certificate upon which the land in controversy was located, and that it could not be considered by them as evidence of title to ownership of the land in controversy or the certificate whereby it was located and patented. We must presume that a jury of ordinary intelligence would not misunderstand an instruction so clearly expressed, or willfully disregard it. It is only when it is reasonably apparent that the immaterial or irrelevant evidence has affected the verdict that the evidence thus excluded or limited by the court will afford ground for a reversal. Railway v. Mitchell, 75 Texas, 81; Russell v. Nalle, 79 Texas, 664. The objection presented by the ninth assignment is not tenable, as George W. Paschal, Jr., the maker of the deed, was shown to be the only heir of George W. Paschal. The deed from Mary C. Paschal to defendant was admissible, as she was the administratrix of I. A. Paschal; and this disposes of the eleventh assignment. The twelfth assignment of error is to the admission of a deed from J. P. Hector to defendant Reus, which appeared to be by virtue of a location upon .the northern part of the land in controversy, and patented to the heirs of Jacob Chappel. Hector appeared to own the Chappel title, and conveyed, as Reus testifies, 127§ acres, the northern portion of the land in controversy. The objection to this deed was, that it did not purport to convey any portion of the land in controversy. But, in connection with Reus’ testimony, it did do this; and although it did not in fact confer title, it was not irrelevant. *636 The thirteenth assignment complains of the admission of the proceedings of the District Court of Bexar County, in the proceedings brought by the Paschals to require the county surveyor, in 1873, to survey the land by virtue of the location of 1856, on the ground that it was not relevant, and because these plaintiffs were not parties to the cause. The evidence was properly admitted, for the acts of the Paschals in the exercise of proprietary rights and control over the certificate were circumstances that could be considered in respect to the issue of whether or not the certificate had before its location become the property of the Paschals, in connection with the circumstances that preceded the location. The failure of Jones and his heirs to assert any claim to the certificate or land was a circumstance important to be considered, and for the same reason the continuous assertion of claim by the Paschals was material. It appears that in 1855, at the time the exhibit A was made, the certificate was not located, and remained so until the following year, when one of the Paschals caused it to be located. His possession of it was not inconsistent with the rights of Enoch Jones, as under their agreement, as evidenced by exhibit A, the possession of either would be the possession of both. But it appears that Paschal had already sold (in 1853) during Jones’ lifetime a part of the land to Eeus, and this deed was of record. The exhibit A discloses that many of the certificates it related to were sold, and some taken exclusively by Jones. This placed the parties on some other footing, as to those not disposed of, than existed when the paper was executed. Jones lived until 1863, and the land and certificate in question was not inventoried in his estate. I. A. Paschal died, and it went upon the inventory of his estate, and since then, as well as before, the Paschals have exercised dominion over the property, and the representatives of Jones have made no claim whatever. From "these circumstances it was admissible for the jury to find that the certificate had become the property of the Paschals,- and upon a proper charge they have made such finding, and we think the judgment should be affirmed. Affirmed. Delivered December 20, 1893.