Hines v. Thorn

Bonner, Associate Justice. The appellant Hines has not set out in his brief the errors relied on to reverse this case. We have, however, considered such of them as were deemed necessary to a proper disposition of it, but not in the order assigned. The decisive question arises under the third assigned error, which is as follows : “ The court erred in the construction given in the charge to the special act of the legislature of the state of Texas, passed on the 1st day of September, 1856, in evidence in this cause, in this, in effect: in instructing the jury that if Allen Hines had sold the land titled by Smyth, then the vendees of said land were equitably entitled to the certificate; and the transfer to said land authorized the commissioner of the general land office to issue the patents to the land in controversy in this suit to the vendees of said Allen Hines of said land titled by said Smyth.” It "was evidently the primary object of the legislature to recognize the validity of the original claim of Allen Hines for land, notwithstanding the invalidity of the title issued by Commissioner Smyth, and as far as consistent with the rights of third parties, to cure this defect by vesting into him or his assignees a perfect title to this land. The special act in this case was different from that in McKinney v. Brown, 51 Tex., 96, in this: that in the one under consideration the rights of assignees were protected, and in the other they were not. The statute did not in terms give title to the assignees of Alien Hines to the certificate, if it became necessary to issue one, but in our opinion this was the intention of the legislature. It did in terms vest the title to the land itself, if not adversely appropriated, into the vendee or vendees of Hines, their heirs or assigns. Had not this land, then, been adversely appropriated, the whole title and interest of Hines would have been, under the evidence, vested into his assignees, and who are now represented by the defendants. That inchoate claims for land against the government was the subject matter of sale has been decided by this court. Johnson v. Newman, 43 Tex., 39, and authorities cited. A legal sale of the land, by which it had been appropriated, would pass title to the claim or certificate by which it was thus appropriated. Whatever defect may have originally existed in the title of defendants, by reason of the illegality in the original conveyance from Hines at a time when by law he had not the power of alienation, was cured by the subsequent conveyance by him to Mary E. Brown, under whom the defendants also claim, made after this disability had been removed. Holmes v. Johns, Tyler Term, 1881. [103] Hines’ claim for land then passed by his former deed. As the primary object of the legislature was to vest into him or his assignees, if any he had, the title to the particular land which had been originally located by this claim, and as this ivas defeated because the land had already been adversely appropriated, it would seem to be the evident conclusion that the title to the certificate, which was a mere secondary object, and intended as a substitute for the land, if that could not be had, would vest into his assignees in like manner as the title to the land would have done. This was the construction placed upon the act by the commissioner of the general land office, who issued the patents upon the certificates to the heirs of Frost Thorn, deceased, and which we think was the proper one under all the facts and circumstances of the case. The first assigned error presents the question that the following testimony on behalf of the defendants was improperly admitted because immaterial and pertained to another survey of land, to wit: 1. The testimonio issued by G. W. Smyth, 28th of November, 1835. 2. Power of attorney from Allen Hines to Isaac Lee, dated October 28, 1835. 3. Deed from Isaac Lee, attorney for Allen Hines, to Frost Thorn, dated March 17, 1836. 4. Copy of deed from Allen Hines to Mary E. Brown, dated April 16, 1841. 5. Copy of deed from Mary E. Frazer (formerly Brown) and her husband to Frost Thorn, dated April 9, 1853. The testimony objected to tended to prove the title under which the defendants held the patent to the lands, and was therefore material and pertinent. The fifth assigned error is that “ the court erred in admitting in .evidence the deed from Allen Hines, of 16th day of April 1841, to Mary E. Brown, because the original had not been accounted for, or its loss shown. There was no proof that it ever had an existence or ivas ever executed and delivered, and no affidavit of its loss, and in addition it is shown to be a copy of a copy.” Were this alleged error well taken in fact., and it certainly was not in some material particulars, it might be a sufficient answer to say that the testimony, though relied on by the defendants, was first introduced by the plaintiff himself. There was, however, testimony of the existence of the original deed, and full proof that it had been lost, that diligent search had [104] been made for it, and that it could not be found. The testimony objected to was a certified copy from the general land office. This under the statute had the force and effect of the original in that office. That original was a duly certified copy from the original record of the deed, and even if there were degrees in secondary evidence, this would be the highest character of such testimony. The objection taken in the brief of counsel, that it did not appear that this copy showed that the original certificate of the officer taking the proof for record was under his official seal, is not well taken. It purported to be under seal, the clerk recorded it on the certificate as presented, and the presumption is that these officers did their duty, unless it clearly appears otherwise. This precise question has been decided by this court. Ballard v. Perry, 28 Tex., 347, and which was affirmed in a recent case. Other assigned errors relate to the charge of the court. Although there may be some objections to portions of the charge, yet we think that, taken as a whole, the plaintiff’s rights were not prejudiced thereby. Under it, evidently, the jury could not have found for the defendants on the plea of limitations. That the verdict may have been based upon the plea of stale demand, was, we think, fully justified by the evidence. However valid may have been originally the claim of plaintiff Hines to a league of land, he is not shown to have taken any steps whatever to secure it after the grant to him by Commissioner Smyth was found to have been void. This fact could have been ascertained as early as the year 1854, when the supreme court passed adversely upon this class of titles. He not only waited until the several boards of land commissioners and the court of claims had expired by their own limitations, but never at any time made any effort to perfect his claim. The adverse title of the defendants had its inception in the year 1835, and was peaceable and continuous. Although this title was upon the public records, plaintiff Hines failed and neglected to contest the same, and was never heard to complain until the institution of this suit, on March 4, 1879. It would seem conclusive that this delay could not ■be explained on any other reasonable hypothesis than the belief on his part that he had no just right or interest.in the matter. The alleged error that the charge of the court was upon the weight of evidence, and the others not already considered, are too general to demand, under the evidence, that they be considered. The legal title to the lands was in the defendants, and the burden of proof devolved upon the plaintiff to defeat it by satisfactory [105] evidence of a superior equity. This, in our opinion, he has not done. As the justice of the case seems to have been reached, and as there is no material error apparent of record in the judgment below, the same is affirmed. Affirmed. [Opinion delivered May 12, 1882.]