Ansaldua v. Schwing

STAYTON, Chief Justice. This action was brought by the heirs of Juan Cruez to recover one-third of a league of land patented to him as assignee of Francisco Rosalis. Certificate No. 573 was originally issued to Francisco Rosalis for one league and labor of land by the land board for Nacogdoches County, but by the traveling board it was only approved for one-third of a league. The original certificate, however, was located and surveyed on land in Nacogdoches County on June 1, 1838, and on June 13 of same year Juan Cruez as assignee of Francisco Rosalis conveyed the land so surveyed to Benjamin Clark and John D. Clary by a deed acknowledged before the deputy of the county clerk for Nacogdoches County in June, 1838, and it was at once recorded in that county. On April 29, 1852, the original certificate for one-third of a league of land, bearing the same number as the original certificate (No. 573), having been shown to be lost, the Commissioner of the General Land Office issued a duplicate of that certificate to Juan Cruez as assignee of Francisco Rosalis, which was located on the land in controversy, and the defendants claim it under regular chain of transfer from Benjamin Clark and John D. Clary. The original certificate, for one league and labor of land with the survey made under it in Nacogdoches County were never returned to the General Land Office. A copy of the report of the traveling land board, duly certified by the Commissioner of the General Land Office, showing that the original certificate was only approved for one-third of a league, and showing the number to be the same as that conveyed to Clark and Clary and located in Nacogdoches County, was offered in evidence by defendants, plaintiffs objecting on the ground that it was irrelevant and had no application to the land in controversy. The evidence was proper for the purpose of identifying the certificate under which the land in controversy was granted with that conveyed by Cruez to Clark and Clary, and for further purpose of showing that the original certificate was located in - Nacogdoches County when the conveyance from Cruez to Clark and Clary was made, for that conveyance was of land which it has been held would pass title to the certificate by virtue of which the land was surveyed, and the fact that the certificate was approved for only one-third of a league would not affect *201 the rule. Robertson v. Du Bose, 76 Texas, 1; Hines v. Thorn, 57 Texas, 102: Hearne v. Gillett, 62 Texas, 23; Traylor v. Lide, 7 S. W. Rep., 62. The evidence showed beyond controversy that the certificate by virtue of which the land in controversy was granted was the headright of the same Francisco Rosalis to whom had been erroneously granted the headright certificate for a league and labor of land located in ¡Nacogdoches County. The evidence was properly admitted for the further purpose of showing that the original certificate was located and land surveyed under it in ¡Nacogdoches County at the time the conveyance was made by Cruez to Clark and Clary, and that for this reason that conveyance was properly recorded in the county in which land was located by virtue of it. While registration of the conveyance from Cruez to Clark and Clary in ¡Nacogdoches County would not operate as notice of their right to the land in controversy situated in Wise County,, yet the registration would be valid, and a copy taken from the record of ¡Nacogdoches County would be evidence if the instrument was properly authenticated for record and the nonproduction of the original was properly accounted for. Hancock v. Lumber Co., 65 Texas, 225. The affidavit of inability to produce the original and proof of its loss were sufficient to entitle defendants to introduce a copy of the deed duly certified by the county clerk for Nacogdoches County; and that the deed from Cruez acknowledged before the deputy of the county clerk for ¡Nacogdoches County in 1838 was properly authenticated for record is not an open question. Rose v. Newman, 26 Texas, 135; Cook v. Knott, 28 Texas, 90; Frizzell v. Johnson, 30 Texas, 35; West v. Schneider & Davis, 64 Texas, 330. There is no error in the proceedings, and the judgment will be affirmed. Affirmed. Delivered May 26, 1891.