Howard v. Colquhoun

Smith, J. —This is an action of trespass to try title, instituted' by the appellee, Colquhoun, 28th March, 1856, against James and Isaac Jackson, to recover the league of land granted July 4, 1835, by the commissioner of Robertson’s colony, Wm. H. Steele, to Wm. Fisher, as a colonist in that colony, and conveyed by said Fisher to said Steele, October 5, 1835, and by Steele to the appellee 13th day of February, 1839. W. L. Scales was permitted to defend as the landlord of the Messrs. Jackson; and by amended petition, filed April 16, 1856, the appellant, Philip Howard, is made party defendant below. A trial was had and a verdict and judgment rendered in favor of Colquhoun. The District Court, however, granted the defendants below a new trial, and afterwards, on the 5th April, 1859, another trial was had, with a similar result, with which all the other defendants appear satisfied but the appellant, Howard. He brings the cause here upon an appeal, and among numerous errors assigned, the first is, that the court erred in charging the jury that they would look to all the testimony, and the fact that some of the witnesses had been impeached, in order to decide whether they should believe those witnesses as to any facts in the cause. It is insisted by the appellant, that the judge charged — 143 — upon the weight of evidence, and left the jury under the impression that the court had, as a matter of law, charged them th^the witnesses were impeached, and that they had no right to determine whether they were entitled to credit or not. The language of the charge might have been couched in more appropriate terms perhaps; but we are of opinion that the scope and meaning of the charge were, that their character had been attacked, and it was for the jury to judge of the weight their testimony was entitled to, and that the jury must have so understood it. We hold there was no error in this. The defendants below asked of the court thirteen charges to the jury, all of which were refused and assigned as error. We might disregard this assignment as being too general and comprehensive in its terms, in not pointing out the specific error complained of. However, it will be observed that they are irrelevant, not correct in law, and therefore rightly refused, or were given in substance by the court in its charge to the jury. The eleventh charge asked and refused and specially assigned, we are of opinion, was substantially given to the jury. The court instructed the jury, that if Steele, the commissioner, became the owner of William Fisher’s claim before the grant issued, and was the beneficiary at the time, then the grant was void for fraud. The grant must be complete, and the name of the grantee must have been inserted in the grant before it could have been said to be “issued” or “made,” as referred to in the charge. The appellant objected to admitting in evidence the deed from William Fisher to William H. Steele without proof of its execution, and insisted that it had not been duly registered, so as to be admitted in evidence under Art. 469, O. & W. Dig. [Paschal’s Dig., Art. 3716, Note 840.] The deed was executed October 5, 1835, by William Fisher to Steele, before J. G. W. Pierson, judge of the second instance, and two instrumental witnesses. Pierson, — 144 — on the 13th April, 1839, appeared before the clerk of the County Court of Milam county, acknowledged his signature to the deed, and proved that of the maker, William Fisher, and it was placed on record in that county, in which the land then lay. This is thought to be a sufficient registration at that time, and that it was not required of the interested party to register it again in new counties formed from the territory of Milam, and in which this land should happen to be. (O. & W. Dig., Art. 1742; Paschal’s Dig., Art. 4982, Note 1091.) In the case of McKissick v. Colquhoun, 18 Tex., 149, a deed executed, authenticated, and recorded almost precisely like this, the court held to be properly registered. The appellee, however, has used the precaution to have the deed again proved by the other subscribing witness, ¡Robertson, in 1856, and placed on recprd in Bosque county. We believe the deed was properly received in evidence. The most important point, and one upon which the whole case.was made to turn, is involved in the assignments that the verdict of the jury was contrary to' law and evidence. The court charged the jury, that the plaintiff below’had sufficient title to recover, unless the original title was void from the time it was made out by Steele, the commissioner; "that it is presumed to have been issued in good faith, and is valid, not void; that fraud cannot be presumed, but may be proved directly or by circumstances; that if Fisher were entitled to only one-fourth of a league of land, and Steele, knowing this, purchased his claim, and issued a title for his own benefit, this was a fraud, and renders the title void; that if Fisher’s title was bought by Steele before it issued, this would be fraud. This charge fully presented the distinct proposition to the jury: If Steele, the commissioner, purchased and owned the head-right claim of Fisher at the time he passed upon his qualifications and issued the grant, it would be — 145 — fraud, and for that the grant would be void. This, as a proposition of law in this case, if it can be maintained at all, is certainly liable to severe criticism. That fraud, the evidence of which rests in the memory of witnesses, can be established a quarter of a century after the grant has been issued by the proper authority, and with all the due forms of law, renders the grant void and defeats the title in the hands of an innocent purchaser from the grantee, presents itself to us as an alarming doctrine. It is believed no such doctrine has ever been announced by this court. Mr. Justice Wheeler says, in the case of Johnson v. Smith, 21 Tex., 722, “That there certainly should be some period of time beyond which grants and patents should cease to be open to attacks in the hands of innocent bona fide holders. The door should be closed at some time against temptations to frauds and perjuries; otherwise there would be no security to paper titles. Ho one can purchase the fairest apparent title without taking the precaution to inquire into the circumstances of its emanation.” And he farther observes: “As the question of fraud must be referred to the decision of a jury, men’s titles maybe made to depend on the frail and treacherous memory of witnesses, or their own personal popularity, or freedom from popular prejudice.” These remarks we regard as very appropriate and very just. If titles can be thus attacked, time, instead of lending a helping hand to cure apparent defects and remove opposing claims, will only be the means and afford a ready opportunity of rendering them less secure against mistakes, frauds, and perjuries. The older the title, the less secure it becomes against such attacks. Presumptions of the regularity and justness of old titles should be freely indulged, in order, as stated by Chancellor Pluckett, “to repair the injuries committed by time.” Many authorities can be cited against the right of a third party to plead fraud in the procurement of a grant — 146 — issued by legal authority, and that such objections to the grant can only be taken by the government in her own name in proceeding directly to annul the grant, and that these questions are exclusively confined to the Govern-ment and the grantee; that while the Government is content, no person can impeach the grant, and especially one who has no title or claim whatever to the land, as appears to be the condition of the appellant in this case, who appears to be simply an intruder upon the premises, without any pretence of claim whatever. He pleads a claim, but proves none. (Field v. Seabury, 19 Howard, 332; Polk’s Lessee v. Wendell, 5 Wheaton, 293; 10 Johnson, 24; 3 Head, 50; White v. Burnley, 20 Howard, 247; Owens v. Raines’ Lessee, 5 Haywood, 106; Bomer v. Hicks, 22 Tex., 155.) In this case, we do not deem it necessary to determine whether the charge of the court to the jury, presenting the question of fraud in the grant, was proper or not, for the jury, in their verdict, find that there was no fraud committed, and the charge, if erroneous, is in favor of the appellant, and can furnish him no grounds of reversal. We are of opinion, that the evidence in the cause fully sustained the verdict. The appellee produced a grant issued by proper authority and regular in form, dated 4th July, 1835, and proved its genuineness by one of the witnesses, Bobertson; the deed from the grantee to Steele, dated 5th October, 1835, executed before the judge of the second instance, and after that proved by two of the wifi nesses, and duly recorded since 1839. This deed recites the consideration to be $500, and that the land had been granted to him as a colonist. The deed from Steele to the appellee, dated April, 1839, duly registered in that year, and with evidence that he paid $800 for it, not conclusive, but satisfactory, we think. There is no evidence that he had any notice of any infirmity in the title, and he shows himself to have been — 147 — an innocent purchaser for value since 1839. The appellant, to impeach this title, offers the testimony of three witnesses to prove that William Fisher, the grantee, sold his claim to the commissioner, Steele, before the title was issued to him, and that Steele was the real and beneficial owner of the land when he issued the grant for a league, and when Fisher was entitled only to one-fourth of a league. The testimony of the two Fishers is in direct conflict with the paper title, as proved by the appellee, and also conflicts with the testimony of Hensly, who testifies the sale was made through him, and was in 1835; that Fisher executed a deed to Steele, and he believes the grant was then issued. Ho deed but the one produced by the appellee has been produced or attempted to be produced, and the character of these witnesses was impeached. The appellant attempted also to prove that the grant had been ante-dated, or that the name of Fisher was inserted in the blank left after-the date of the grant, and subsequent to the deed from Fisher. In answer to this, we say there is no positive evidence of the fact that the grant was antedated, or that the name of Fisher was inserted in the grant after its date. There is no direct evidence of the charge of fraud and corruption on the part of the high government official, the commissioner of the colony; nothing shown of this alleged official dereliction and turpitude, but some apparent differences of penmanship in the protocol, or some slight variations in the shades of the ink with which the name of Fisher was written and the residue of the grant. It is seriously urged that it looked suspicious! It looked like it had not all been written by one person, with the same pen and ink, and therefore it is contended the grant must have been ante-dated, and that it was consummated in fraud and official corruption on the part of the commissioner, and all those engaged with him in the important office of extending titles to the colonists. We must con — 148 — fess that we are not prepared to draw the inference contended for from circumstances so slight and trivial; hut we are of opinion, that at this late day, when all who took a part in the scene have gone “ from among us,” and with them has departed the correct knowledge of the whole transaction, and time has rendered it impossible to unfold the whole truth connected with the emanation of the grant, it is the duty of the jury and the court to hold, that these discrepancies and apparent differences in the mechanical work and color of the ink used in the preparation of the grant were not the work of fraud and official dereliction, but were consistent with an honest and faithful discharge of the official duties of those who prepared and issued it. It is as rational to infer that the differences in the handwriting and color of ink used in preparing the grant occurred in the regular line of the duties of the officers, and were as honestly and properly made, as it is to infer from them that they were the work of official misconduct and fraud. The mere manual labor of preparing the grant prior to the signature of the commissioner may have been done by a number of officials connected with the office, and in the proper discharge of their duties, and each one may have performed his part with different pens and with different colored ink. We know of no rule of law that required the whole of the grant to be prepared by one person affid with the same pen and ink. In such cases the law prefers throwing the mantle of charity over all such discrepancies, and will draw the more humane conclusion, that the officers acted correctly, and did not commit fraud and official dereliction. Their acts will be presumed to have been done as the law directed them to be done. The testimony offered by the appellant, to prove that the commissioner was the owner of the land at the date of the issuance of the grant, is not satisfactory; the witnesses disagree as to the date of the sale of the grantee, Fisher, to — 149 — William H. Steele, and the evidence offered directly conflicts with the paper title made hy the parties at the time to perpetuate their contracts and rights under them, and the witnesses disagree among themselves upon several matters of fact, connected with the date of the sale to Steele, the consideration paid at the time, &c., all going to show how dangerous it is to permit the testimony of transactions that have long since past to depend upon the frail memories of witnesses offered in evidence to impeach a title, apparently possessed of all the indicia of authority and legal form. Such testimony should he received with much caution and close scrutiny at this late day, when it conflicts with the record memorials of titles issued and perfected a quarter of a century ago. (Portis and Wife v. Hill’s Heirs, 14 Tex., 69.) The commissioner was made the exclusive judge of the qualifications of the colonist Fisher, and the issuance of the grant to him precludes all inquiry respecting his right to a league, or less than that amount. It is res adjudicata, and cannot now he impeached on the ground that he was a single man and without a family. (Johnson v. Smith, 21 Tex., 722; 15 Tex., 590; 10 Tex., 503.) There were two .trials of this cause in the court helow, and a verdict in each instance was rendered against the appellant, Howard; and we are of opinion the verdict was fully sustained hy the evidence, and that there is no error in the judgment. Therefore, it is Affirmed.