Crosby v. Ardoin

HIGGINS, J. This is an action of trespass to try title by appellant, plaintiff below, against appellees. On October 4, 1838, the board of land commissioners of Houston county issued to William C. Stanley original headright certificate No. 173, for one league and labor of land. On January 1, 1839, W. C. Stanley conveyed the same with a general warranty to T. B. Huling, which conveyance was acknowledged for record on July 2, 1853, before John Hamilton, notary public of Jasper county, and recorded in the deed records of El Paso county some time between May 10, 1859, and November 12, 1860; the record does not disclose the exact date the same was filed and recorded, but it was otherwise satisfactorily shown that it was at some time between the dates mentioned. Appellees, defendants below, claim title to the land in controversy under this transfer. On December 22, 1S56, half of a league and half of a labor of land, the same being the property in controversy, situated in El Paso county, was patented to the said Stanley, and is known as survey No. 50 in section No. 1. The land was located, surveyed, and patented by virtue of duplicate certificate No. 2145/2246, issued by the Commissioner of the General Land Office on October 30, 1851, in lieu of said original headright certificate No. 173. The issuance of this duplicate certificate was secured by Stanley and was based ufton an affidavit of the loss of the original. This duplicate certificate was issued under the provisions of act of January 14, 1840, and an amendatory act of May 11, 1846, both of which will be found in Gammell’s Laws of Texas, vol. 2, at pages 242 and 1532, respectively. By conveyance dated November 17, 1851, Stanley, acting by his authorized agent, Adolphus Stern, conveyed the duplicate certificate to one Johnson, under whom appellant claims by mesne conveyances. After the parties had concluded the introduction of their testimony, plaintiff took a nonsuit, and the court peremptorily instructed the jury to find for the defendants upon their cross-action over against the plaintiff.’ On March 30, 1877, Elizabeth Huling, as survivor of the community estate of Thos. B. Huling, conveyed the land to W. O. Phillips. By deed dated May 21, 1880, W. O. Phillips conveyed to J. H. Phillips, and thereafter J. H. Phillips, for a consideration of $4,000 paid, by deed dated February 4, 1884, reconveyed the land to W. O. Phillips. In a certain cause pending in the district court of Travis county, wherein W. O. Phillips was plaintiff and J. H. Phillips and others were defendants, partitioning certain land therein described, the land in controversy was partitioned and set aside to W. T. Phillips. It appears from the recitals in the partition decrees that the land in controversy was the community property of W. O. Phillips, the plaintiff, and his deceased wife, Penelope Phillips. That Penelope Phillips died intestate October 7, 1882, and that the six defendants at the date of her dedth were her only living children. The first decree was dated October 20, 1886, and decreed that W. O. Phillips owned an undivided one-half interest in the property and the defendants each a one-sixth undivided interest, and ordered partition and appointed commissioners. The other decree was dated December 20, 1886, approved report of commissioners, and partitioned and set aside in severalty to W. T. Phillips the land in controversy, and by mesne conveyances the same passed to the defendants. Plaintiff *712 objected to the introduction in evidence of these decrees rendered in the district court of Travis county, and by her first, eighth, and ninth assignments of error urges that she was a stranger to this partition suit, not bound by the recitals therein, and without such recitals there is no evidence to show: First, the marriage of W. 0. Phillips and Penelope Phillips; second, the death of Penelope Phillips; third, the marriage of Fleeeie H. Holmes and Walter H. Holmes, or the heirship of the defendants in the partition suit, viz., J. H. Phillips, Mary C. Phillips, Fleeeie H. Holmes, Florida Phillips, Willie T. Phillips, and Walter D. Phillips; fourth, that the property was the community property of W. 0. Phillips and Penelope Phillips ; fifth, and assuming that such recitals were competent and sufficient to prove the facts above stated, the issues of fact thus made as to pedigree and the community status of the property involved were issues of fact which should have been submitted to the jury. Aside from the recitals in above-mentioned decrees, it is insisted that there is no testimony which in any wise discloses that Penelope Phillips was the wife of W. 0. Phillips; that she was dead; the marriage of Fleeeie H. Holmes and Walter H. Holmes and heir-ship of the defendants in the partition suit; or that the property was the community property of W. 0. Phillips. [1] Were it material to establish the facts shown by those recitals in the decree, it may be that the objection urged by appellant would be well taken. We express no opinion as to the sufficiency of those recitals' as proof of the facts therein stated. As stated above, the land was conveyed to' W. 0. Phillips by J. H. Phillips by deed dated in 1884. Excluding from consideration, as it is contended by appellant should be done, the recitals in the judgment, then there is no evidence of any community status or of title thereto in any one except in W. C. Phillips. Title being thus vested apparently absolutely in W. O. Phillips, in a partition suit to which he was a party, a judgment was rendered which divested all of his right, title, and interest in the land and vested the same in W. T. Phillips. The partition decree was certainly admissible in evidence for the purpose of showing the divestiture of the title of W. C. Phillips, and, appellant objecting to the sufficiency of the recitals, there is then no evidence of any community claim, and the judgment passed the W. 0. Phillips title to W. T. Phillips. With 'reference to the fifth ground of objection urged, as stated above, it is apparent that, by her own objections and contentions urged against the legal sufficiency of the recitals in the partition decree, the only evidence of pedigree and the community status of the property was eliminated and the effect of the contention is that the property was the separate' property of W. O. Phillips and his title by the partition decree was vested in W. T. Phillips. There was therefore no issue of pedigree or of the community status of the property in the case, and no issue of fact in regard thereto to be submitted to the jury. [2,3] Under the first assignment it is further contended that the recitals in the partition decree disclose that W. T. Phillips was then a minor, and it was incumbent therefore upon appellees to show that he was of age when he executed a conveyance of the land to Ella R. Burghardt on October 7, 1S89. The final partition decree was dated December 20, 1886. We think it would be presumed that he was of age when he executed the conveyance, but, if such a presumption did not obtain, no one but W. T. Phillips could take any advantage of the fact that he was a minor at the date of the execution of the deed. The act of a minor is not void, but voidable only, and appellant could not avail herself of his minority, if he was, in fact, a minor when he executed the deed. The second and third assignments of error do not point out the particular error upon part of the trial court complained of, nor do the subjoined propositions. They seem to be addressed to the proposition that if the cause is reversed it should be reversed and rendered instead of being reversed and remanded, and relate rather to the nature of the judgment to be here rendered than to any particular error on the part of the trial court. We doubt the sufficiency of the assignments to entitle them to any consideration, but have considered same and overrule them because we think the judgment should be affirmed. [4] The fourth assignment of error complains of the action of the trial court in refusing to direct a verdict for the plaintiff for four separate and distinct reasons stated in the assignment; the reasons urged practically embracing every material point on which the appeal is based, and is submitted as a proposition. Considered as a proposition, it is complex and multifarious and cannot be considered. Railway Co. v. White, 120 S. W. 958, and other cases cited by this court in opinion rendered at this term upon motion for rehearing in case of Hemphill v. National Iron & Steel Company, 142 S. W. 845. [5] Appellant by her fifth assignment of error complains that the court erred in admitting in evidence a certified copy of the transfer of original certificate No. 173 by William Stanley to Thos. B. Huling dated January 1, 1839, which was acknowledged before John Hamilton, a notary public of Jasper county, for the reasons set forth in first bill of exception. This assignment is first submitted as a proposition, and, referring to the bill of exception, we find 12 different objections urged to the admissibility of the instrument. As a proposition it is manifestly not entitled to consideration, and in passing upon this assignment we will con *713 fine ourselves to the objections raised by tbe subjoined propositions. Appellant filed an affidavit of forgery attacking tbe authenticity of this transfer. As above stated, tbe instrument was dated January 1, 1839, and purports to have been acknowledged before John Hamilton, a notary public of Jasper county, on July 2,1853. Tbe exact date it was filed for record in El Paso county is not disclosed, but by tbe testimony of tbe county clerk it is shown to have been recorded some time between May 10, 1859, and November 12, 1860; the testimony of the said clerk showing that tbe instrument was recorded in Book B of tbe deed records, and that a deed recorded in same book prior to that deed was recorded May 10, 1859, and that a deed recorded subsequent to tbe Stanley transfer in that book was recorded November 12, 1860. [6] As affecting tbe question of tbe admissibility of this certified copy in evidence, the affidavit of forgery merely imposed upon ap-pellees tbe burden of proving the instrument as at common law; it being an ancient instrument, recorded in El Paso county for over 50 years, and, its authenticity corroborated by the acknowledgment certificate, the instrument proved itself, and the certified copy was admissible in evidence. Holmes v. Coryell, 58 Tex. 680; Brown v. Simpson, 67 Tex. 231, 2 S. W. 644; Riviere v. Wilkins, 31 Tex. Civ. App. 454, 72 S. W. 608; McCelvey v. Cryer, 8 Tex. Civ. App. 437, 28 S. W. 691: Railway Co. v. Locke, 74 Tex. 396, 12 S. W. 80. With reference to the refusal of the court to consider certain testimony which appellant offered against the admissibility of the deed, such testimony related, not to the admissibility of the instrument in evidence, but rather to the weight to be given to the instrument in considering the issue of forgery. Williams v. Conyer, 49 Tex. 582. An examination of the bill discloses that the only testimony offered which might have rendered the instrument inadmissible in evidence was as to the authority of the notary public to act as such, and the only testimony upon that issue shows conclusively that the notary public was a duly appointed and qualified officer. The propositions under this assignment of error are so general that it is difficult for us to ascertain the exact contention of appellant, and, if we have failed to grasp fully her contentions, it is due to the general and vague form of the propositions and failure to subjoin thereto a concise statement of the facts upon which she relies in support of the proposition. The statement which she refers to under these propositions is the statement following the submission of the assignment as a proposition, covering ten pages of her brief, six pages of statement under first assignment of error, one page under third assignment of error, and one page under fourth assignment of error. The various statements to which we are referred contain a mass of matter which could have no bearing upon a consideration of this assignment of error, and we are left without any specific information so far as the statement is concerned of what the facts are upon which appellant relies in support of the propositions under this fifth assignment of error. The sixth assignment of error is disposed of and overruled by what has been said with reference to the admissibility of the certified copy of the transfer from Stanley to Huling. [7] By her seventh assignment of error appellant challenges the correctness of the court’s action in refusing to submit to the jury the determination of whether or not the transfer from Stanley to Huling of the original certificate was genuine or a forgery. The filing of an affidavit of forgery casts upon the party claiming under the deed the burden of proving its execution as at common law and, as we have seen, appellee fulfilled the burden, because the instrument was admissible as an ancient one. If the party impeaching the deed desires to do so, he may proceed to sustain by any lawful testimony the plea non est factum. While the burden of proof at all times rests upon the party claiming under the impeached instrument, yet the jury, in the absence of all proof sustaining the plea of forgery, could not find against the validity of the deed, and should be so instructed, where its genuineness has been prima facie established in some mode prescribed by common law. Cox v. Cock, 59 Tex. 524; Robertson v. Du Bose, 76 Tex. 1, 13 S. W. 300; Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963; Words and Phrases, vol. 6, p. 5549. [8] The facts relied upon by appellant in support of her plea on non est factum, as set out specifically in the statement subjoined to this proposition, were as follows; The instrument and acknowledgment were both attacked by the affidavits of forgery; the instrument offered in evidence was a certified copy and not the original; the residence of Stanley is shown to have been in Angelina county and not in Houston county, as recited in the instrument; the name signed to the instrument is misspelled “Stanly”; the acknowledgment of the instrument was taken 13 years after its purported execution: Huling wrote a letter which was introduced in evidence as an archive of the land office asking if the patent was issued to Stanley upon the original certificate, which he must have then had in his possession if the transfer was genuine, and in this letter the name was likewise misspelled “Stanly,” being the same mistake made in the signature to the purported transfer; that the facts indicated that the instrument was probably not executed until about the date of the loss of the original and advertisement of its loss, and issuance of the duplicate; that no steps appeared to have been taken by Huling or those claiming under him to locate the original certificate; the only evidence as to its cus *714 tody was its record as shown by the certified copy; that Thos. B. Huling was shown to have been a fugitive from justice, and his reputation as a forger was bad; that John Hamilton, the notary public before whom the instrument purports to have been acknowledged, had not qualified at the date of the purported instrument; that the reputation of Stanley was good, and that the duplicate certificate was located under a contract between Hancock, Crosby, and M. T. Johnson. The foregoing are the specific facts referred to by appellant in the statement as raising the issue of forgery. She further refers the court in this statement to various other preceding voluminous statements in the brief which contain a mass of matter which could have no possible bearing upon the issue of forgery, and, in determining whether or not the issue of forgery was raised by the evidence, we will confine ourselves to that specifically stated by her above quoted. Referring now to these facts specifically called to our attention, we will discuss the same in the order stated. The affidavit of forgery was not evidence thereof. Sydnor v. Texas, etc., 42 Tex. Civ. App. 138, 94 S. W. 451; Ehrenberg v. Baker, 54 S. W. 437. The fact that the instrument offered and admitted in evidence by the court was a certified copy certainly does not tend to prove that the original was a forgery. No deduction of forgery can be drawn from the fact that a certified copy, which is expressly authorized by law to be admitted, was admitted instead of the original. In regard to the contention that the residence of Stanley is shown to have been in Angelina county, and not in Houston county, as set forth in the instrument which is attacked as a forgery, we are referred to no testimony which shows that Stanley was not a resident of Houston county at the date of the execution of the instrument. The statement of facts in this case contains 200 pages of typewritten matter, and we will not search this voluminous record to ascertain whether or not the residence of Stanley is shown to have been in Angelina county in 1839. The only testimony which we have observed which shows his residence is that of the witness Davis who testifies that he knew Mr. Stanley in Angelina county in 1858 and 1859. The fact that he'resided in Angelina county in 1858 and 1859 does not even cast a suspicion upon the recital in the instrument executed in 1839 that he then lived in Houston county. The fact that the name signed to the purported transfer being spelled “Stanly” instead of “Stanley” might be a circumstance bearing upon the issue of forgery if there was any direct testimony affirmatively showing the correct spelling to be “Stanley.” Our attention is called to no such testimony showing the correct spelling. It is true it is spelled “Stanley” in the duplicate certificate, in the transfer to Huling, and the certificate of acknowledgment thereto, also in the power of attorney to Stern and in the deed from Stern as agent to Johnson; but this does not constitute direct and affirmative proof that it was the correct spelling, and, if it was the correct spelling, we deduce it by inference only. This being true, the fundamental rule in regard to circumstantial evidence that an inference of fact cannot be founded on an inference is applicable. In 3 Encyc. of Evidence, 70, it is stated, “No inference being reliable which is drawn from premises which are themselves uncertain,- whenever it is sought to establish a proposition by circumstantial evidence, the circumstances from which the inferences must be drawn must be themselves established by direct evidence, as if they were the very facts in issue, and must not be left to conjecture,” and in Starkie on Evidence, 17, it is said: “It is obvious that the means of indirect proof must usually be supplied by direct proof, for no inference can be drawn from any collateral facts until these facts have themselves been first satisfactorily established, either by actual observation or information derived from others who have derived their knowledge from such observation.” See, also, 16 Cyc. 1051, and Wroth v. Norton, 33 Tex. 192. In order, therefore, to predicate a finding of forgery upon the discrepancy in the spelling of the signature, the jury must have first inferred that the correct spelling was “Stanley,” and then infer the fact of forgery from the apparent discrepancy in the spelling of the signature to the Stanley-Huling transfer. Neither do we think the slightest inference can be drawn from the fact that the instrument was not acknowledged until 13 years after its purported execution. The certificate transferred by the conveyance was personal property, and, until it had been surveyed and located, there was no necessity that it should be acknowledged and recorded. It appears to have been surveyed in January, 1854, patented in December, 1856, and the acknowledgment was dated July 2, 1853. Under this state of facts, no deduction of forgery could properly be drawn from the fact that there was a delay of 13 years after execution before acknowledgment. With reference to the letter written by Huling to the land office inquiring about the issuance of the patent upon the original certificate, it appears from the allegations in plaintiff’s motion for a new trial in paragraph 27 that this letter was written by Thos. B. Huling, Jr., and not by Thos. B. Huling, Sr., the grantee of Stanley. It could therefore have no bearing whatever on the question of whether or not Huling, Sr., forged the transfer, and was not admissible in evidence for any purpose. Aside from this, we find upon referring to the letter in the statement of facts the name was there spelled “Stanley,” and not “Stanly,” as stated by appellant. With reference to the contention that the facts indicated that the transfer was proba *715 bly not executed until about the date of the loss of the original certificate, the advertisement of loss and issuance of the duplicate, we are referred to no facts whatever sustaining this statement, and we cannot search the entire record to ascertain if this contention is well founded; neither are we referred to any evidence sustaining the statement that Huling took no steps to locate the original certificate. Even if the record be silent upon this subject, it could not be presumed without any affirmative testimony that no such steps had been taken; neither do any steps appear to have been taken by Stanley to locate the certificate until 1853. The custody of the original instrument cannot be possibly raised in a case where a certified copy is offered, under the statutes, in lieu of the original. There is not a scintilla of evidence supporting the statement that Thos. B. Huling was shown to have been a fugitive from justice and his reputation bad as a forger. The undisputed evidence is that Thos. B. Huling, Sr., the grantee, died in 1865, whereas the testimony of the witness Davis, upon which this contention is predicated, shows that his testimony referred to a man living at a date long subsequent to the date of the death of Huling, Sr., and, further, the twenty-seventh paragraph of plaintiff’s motion for a new trial expressly states that the testimony shows it was Huling, Jr., who was referred to in Davis’ testimony as a fugitive from justice and forger of land titles. The contention that the notary public, Hamilton, was not a notary public at the date of the purported acknowledgment is wholly unsupported and directly contradicted by the undisputed testimony. That the reputation of Stanley was good does not even tend to prove that the instrument relied upon was a forgery, and the fact that the duplicate certificate was located under a contract between Hancock, Crosby, and Johnson has no bearing upon the issue; if it did bear upon the issue, the doctrine of res inter alios acta would apply. We have here an instrument purporting to have been executed in 1839, acknowledged in 1853, and recorded since the year 1860, attacked as a forgery at a time when death has necessarily closed the lips of every witness who could possibly give any direct testimony in support of its authenticity, and the only possible circumstances pointed out to us which could even remotely impeach its authenticity is the discrepancy in spelling the name “Stanley,” the alleged variance between the recited and true residence of the grantor, and the fact that the grantor’s reputation was shown to be good. Eor the reason above indicated, we think no deduction of forgery could legally be drawn from these facts. At 'best, they suggest only a surmise or suspicion from which it might be conjectured that the Huling deed was forged. In Paxton v. Boyce, 1 Tex. 317, it is said; “That, when fraud is attempted to be proven by circumstantial evidence, the circumstances should be strong and pregnant, from which no other reasonable conclusion should be drawn.” A finding of fact upon conjecture is not authorized. In 14 Encyc. of Evidence, p. 76, it is said: “Mere surmise or conjecture is never regarded as proof of a fact, and a jury will not be allowed to base a verdict thereon.” In Smith v. Lawrence, 98 Me. 92, 56 Atl. 455, it is said: “A case is not proved where the evidence gives ground for surmise only; the evidence adduced must be inconsistent with the negative of the proposition.” In Bank v. Stewart, 114 U. S. 224, 5 Sup. Ct. 845, 29 L. Ed. 101, it is said: “The law requires an open and visible connection between the principal and evidential facts and deductions from them, and does not permit a decision to be made on remote inferences.” See, also, Wells v. Fairbank, 5 Tex. 582; Davie v. Terrill, 63 Tex. 105; Rogers v. Tompkins, 87 S. W. 379; Railway Co. v. Greenwood, 40 Tex. Civ. App. 252, 89 S. W. 810; Fulgham v. Railway Co., 181 Fed. 91, 104 C. C. A. 151; Railway Co. v. Faber, 77 Tex. 154, 8 S. W. 64; 17 Cyc. 754. We therefore hold that the trial court committed no error in refusing to submit the issue of forgery. By her tenth assignment of error appellant urges that the court erred in admitting in evidence certified copies of certain proceedings had in the district court of Lampasas county, which proceedings were had in 1872, and substituted the papers in the administration of the community estate of Thos. B. Huling, which proceedings showed that Elizabeth Huling was the wife of Thos. B. Hu-ling, the death of Thos. B. Huling, and her appointment and qualification as survivor of the community estate. [9] By the eleventh assignment she complains of the admission in evidence of the original deed from Elizabeth Huling as survivor of the community estate of Thos. B. Huling to W. C. Phillips, dated March 30, 1877, conveying the premises in controversy, because the recitals in the deed as to administration, marriage, death of Thos. B. Huling, and community status of the property, were not evidence of those facts, and without them there was no competent evidence thereof. The marriage of Thos. B. Huling and Elizabeth Huling and the death of Thos. B. Huling on December 31, 1865, however, is shown by competent testimony aside from the recitals in the deed, and, in view of the age of the deed and the destruction of the Lampasas county records by fire, the court did not err in admitting this instrument in evidence. As a matter of law, the property was presumed to be community and under the circumstances stated the authority of the survivor to sell would be presumed. Ardoin v. Cobb, 136 S. W. 271; Veramendi v. Hutchins, 48 Tex. 552; Manchaca v. Field, 62 Tex. 135; Wolf v. Gibbons, 69 S. W. 238. [10] The substitute proceedings complained of in the tenth assignment were admitted as a *716 predicate to the admission of the deed from Elizabeth Huling to Phillips, and, under the view indicated above in regard to this deed, it is wholly immaterial whether the substitute proceedings were properly admitted or not. The error, if any, in admitting same, was harmless. [11] On the eleventh day after the service of the notice upon defendant by the plaintiff requiring the filing of an abstract, the cause was called for trial and proceeded to trial without objection upon part of plaintiff. The defendant had 20 days after the service of the notice within which to file the abstract, and, if.the plaintiff desired to insist upon her right to have the abstract filed, it was her duty to request a postponement or delay in the trial, and, having failed to do so, it should be held that she waived her right to have the abstract of title filed. The case of Barth v. Green, 78 Tex. 678, 15 S. W. 112, is directly in point upon this question and is adverse to the appellant. The twelfth assignment is therefore overruled. [12] By the thirteenth, fourteenth, and fifteenth assignments of error appellant complains that the court erred in excluding certified copies from the land office of an affidavit of William C. Stanley dated October 14, 1851, stating original certificate 173 had been lost, that he had never sold, alienated, or transferred the same in any manner, and that he was the owner thereof; a copy of the advertisement of such loss, in a newspaper, and a certificate of the publisher of said newspaper of such advertisement; upon which affidavit, advertisement, and certificate the duplicate certificate was presumably issued. These assignments are submitted as propositions. They cannot be regarded properly as propositions, because they do not show the reason why the court erred in excluding same; neither the statements subjoined to these assignments, nor the voluminous written argument filed herein by appellant show any reason why the court erred in excluding the same, and we are left to conjecture and surmise wholly to determine upon what theory appellant contends the court erred. We surmise that the contention is that they were properly admissible in evidence in support of the plea of non est factum urged against the StanleyHuiing transfer, but this is a surmise of ours only and we cannot indulge therein. [13] Under rule 30 (67 S. W. xvi), an assignment of error can be submitted as a proposition only when it discloses the point. The propositions, statements, and argument are designed to show the reason why a particular action of the trial court was erroneous; the proposition being particularly intended to present the point urged. Eor the reasons indicated, the thirteenth, fourteenth, and fifteenth assignments of error are not considered. Houston Oil Co. v. Kimball, 114 S. W. 662; De Hoyas v. Railway Co., 52 Tex. Civ. App. 543, 115 S. W. 75; Boone v. Herald News Co., 27 Tex. Civ. App. 546, 66 S. W. 313; Chapman v. Brite, 4 Tex. Civ. App. 506, 23 S. W. 514; Railway Co. v. Branch, 56 S. W. 542; Hayward Lumber Co. v. Cox, 104 S. W. 403; Land v. Roby, 56 Tex. Civ. App. 333, 120 S. W. 1057; Wilkins v. Clawson, 50 Tex. Civ. App. 82, 110 S. W. 103. In passing, however, we will say, if the affidavit, advertisement and publisher’s certificate were offered in support of the plea of non est factum of the Stanley-Huling deed, the court properly excluded the same. The advertisement and certificate in no wise tended to prove the plea of forgery. The affidavit of Stanley, however, that he was still the owner of the original certificate and had never sold, alienated, or transferred the same, would impeach the validity of the Huling transfer, if properly admissible. As a general rule, ex parte affidavits are not admissible in evidence. The law governing the issuance of duplicate certificates required the owner to make this affidavit as a prerequisite to the issuance of the duplicate, and, if the validity and regularity of issuance of the duplicate certificate was an issue, then the affidavit, advertisement, and certificate would properly'be admissible in evidence to show that the statutory prerequisites had been complied with. The affidavit, however, would not bo evidence against a third party of the truth of the facts therein stated. It is true the land claimed by appellees in this suit was patented by virtue of the duplicate certificate, but an ex parte affidavit made by Stanley would not be admissible in evidence to 'prove forgery of a deed purporting to have been theretofore executed by him. The question is analogous to certain evidence required in controversies over the ,title to free school land. The law regulating the sale of free school land requires the purchasers within a certain time after the land is awarded to him to file an affidavit in the land office stating that he has in fact settled upon the land, and within three years he is required to file an affidavit showing that he has resided upon the land and made certain ' improvements thereon. In an action by such purchaser to establish his title to the land, these affidavits are admissible in evidence for the purpose of showing that the statutory provision requiring their filing has been complied with, but they are not to be received as evidence of the truth of the statements therein contained. So in the instant case, if it were material to show the fact that the affidavit was filed and the necessary publication made, the affidavit and certificate and advertisement would be admissible to show that the statutory requirements had been complied with, but not as evidence of the truth of the statements contained in the affidavit that Stanley was then the owner of the original certificate and that he had not sold or transferred the same. *717 [14] Tile court did not err in excluding the memorandum upon the margin of the letter written by Thos. B. Huling to G. W. Smythe, land commissioner, dated March 3, 1S50, and the sixteenth assignment is therefore overruled. Gaither v. Hanrick, 69 Tex. 92, 6 S. W. 619; Franklin v. Tiernan, 62 Tex. 101. This is especially true in view of the fact that, by the admission in plaintiff’s motion for new trial, the writer of this letter was the son and not the original Thos. B. Huling. In support of the seventeenth assignment of error appellant contends (a) that the evidence raised the issue as to whether or not Josiah F. Crosby and others under whom she claimed were innocent purchasers for value, without notice of the adverse claim of the parties under whom the appellees claim, and that this issue should have been submitted to the jury; (b) that the'evidence showed that appellees and those under whom they claimed were estopped from asserting title as against the appellant, and that this issue should have been submitted to the jury; (c) that the evidence raised the issue of whether or not appellant was the equitable owner of the premises, which issue should have been submitted to the jury; (d) that the evidence showed that ap-pellees’ claim to the property was equitable in its character, and their right to assert the same was a stale demand and had been lost by reason of delay in asserting it. Other questions presented under this assignment have been passed upon in the discussion of preceding assignments. As will be seen from the facts as heretofore stated appellees’ rights are predicated upon the transfer of the original certificate by Stanley to Huling executed in 1839, and the rights of the appellant upon the duplicate certificate transferred by Stanley to Johnson executed in 1851, and the subsequent location and survey of the land under a contract between Crosby, Johnson, and Hancock, and the issuance of the patent in 1856. [15] The certificate under- which appellees’ claim transferred to Huling, as above stated, was personal property, and a purchaser of personal property can acquire no better title than his vendor owns, and equity will not afford protection to an otherwise innocent purchaser except in a case where some element of estoppel exists and would operate against the owner. Dodge v. Litter, 73 Tex. 319, 11 S. W. 331; N. Y. L. Co. v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 210. [16] Stanley having conveyed the certificate to Huling in 1839, no title, therefore, passed to Johnson by the subsequent transfer to him, and no facts are called to our attention upon which an estoppel could be predicated against Huling and those claiming under him. [17] The transfer from Stanley to Huling contained a general warranty, and, upon the subsequent location of the land and issuance of patent to Stanley, both the legal and equitable title became vested in Huling. Barroun v. Culmell, 90 Tex. 93, 37 S. W. 313; Miller v. Gist, 91 Tex. 339, 43 S. W. 263; Dupree v. Frank, 39 S. W. 994. The issuance of the duplicate certificate by the land commissioner was not void, but was voidable as against Huling, and while the rights of the true owner, Huling, could not be divested by the issuance of the duplicate to Stanley, and while he could, if he saw fit, have proceeded to locate the original certificate, yet when the duplicate was located,' and the land patented, Huling and his ven-dees, if they saw fit, could assert their right to and claim the land so located and patented. Seibert v. Richardson, 86 Tex. 295, 24 S. W. 261; Beatty v. Masterson, 77 Tex. 171, 13 S. W. 1014. [18] The doctrine of stale demand has no application here, where both the legal and equitable title appears to have been vested in those claiming' under the transfer of the certificate by Stanley in 1839. [19] The eighteenth assignment of error is as follows: “The trial court erred by failing and refusing to give to the jury proper instructions presenting the issues called to the attention of the court in the third special instruction requested by the plaintiff and refused by the court, as more fully shown by said instruction and by plaintiff’s eighth bill of exceptions which was duly approved and filed in said cause on the 8th day of March, 1911, and made 'a part of the record therein.” The assignment is submitted as a proposition, but cannot be so considered because it does not disclose the point relied upon. We have, however, examined the bill of exceptions and special instruction referred to in the assignment, and it appears from the instruction that it is simply a request that the court submit to the jury the various issues of forgery, etc, It is therefore clearly apparent that this is an attempt under this assignment to raise all material issues in the appeal, without separate propositions submitted in accordance with the rules, but in any event all questions raised by the assignment have been passed upon in the consideration of the preceding assignment. The nineteenth assignment of error is passed upon and disposed of by what has been said in the discussion of the tenth and eleventh assignments of error. The foregoing is the opinion and judgment of the majority of the court. Justice Mc-ICENZIE dissents from some of the views expressed above, and will later file a dissenting opinion. Affirmed.