Opinion of the Court. the defendant so paying, and from maintaining any action whatever against Cox and Echols, respectively, for the above described tracts; that if Cox and Echols did not within six months after the expiration of one year from the judgment pay to the clerk the above respective sums for the plaintiff as above provided, writs of possession might issue in his favor against Cox and Echols or against the defendant so failing for the lands recovered by plaintiff in this action; and that writs of possession issue, as provided by law in ordinary cases, in favor of the plaintiff against all of the defendants for the lands recovered by him in this action, except the tracts adjudged to be held in good faith by Cox and Echols. Motions for new trial and in arrest of judgment having been overruled, a severance was had, upon notice, between the defendants, so that Cox, Tinsley and Echols might prosecute this writ of error separately from their codefendants. The writ of error has been heretofore dismissed as to Echols. At the trial below the plaintiff, Hart, for the purpose of showing title in himself, introduced in evidence a copy of patent No. 379 to the heirs of James Stewart, followed by proof, in the deposition of Mrs. Catharine Stewart, that the only heirs of James Stewart, on the 12th of April, 1854, were William H. Stewart and John T. Stewart, and that they were dead, Mrs. Stewart surviving them; a certified copy from the clerk's office of McLennan County of a deed by William H. Stewart, John T. Stewart and Catharine Stewart, wife of William H. Stewart, dated April 12, 1854, purported to convey to John De Cordova the land embraced in patent No. 379, which deed was filed for record May 8, 1854, and recorded two days afterwards; the original of a deed, dated September 7, 1858, by the marshal of the United States for the Western District of Texas to Edmond J. Hart, Barnett B. Hart and Isaac N. Marks, which, it was claimed, conveyed all the right, title and interest of De Cordova, in the land in dispute; a deed by B. B. Hart to E. J. Hart, of date July 30, 1874, conveying to the latter all the right, title and interest of the grantor in the partnership property, including real estate, personal property and assets of every description; and a deed from I. N. Opinion of the Court. Marks to E. J. Hart, of date August 19, 1874, conveying to the latter all the grantor's real estate in Texas or elsewhere. For the purpose of showing a common source of title with the defendants under De Cordova, the plaintiff also introduced a deed, dated May 29, 1884, from L. B. Davis, administrator of the estate of De Cordova, purporting to convey to Cox 960 acres of land patented to the heirs of James Stewart by patent No. 379; a deed from Cox to Tinsley, dated Decem ber 31, 1884, conveying an undivided half interest in the same land; and deeds to Echols from Cox and Tinsley dated September 4, 1885, for 320 acres of the land in controversy. The defendants introduced in evidence the original of a deed from Mrs. Catharine Stewart, Mrs. Fannie Finnerson, joined by her husband, William H. Finnerson, Virginia Sexton and Josh. H. McAllister to the defendants Cox and Tinsley, acknowledged November 16, 1889, (which was after the institution of this action,) before a notary public in Baltimore, conveying to the grantees therein the land described in patent No. 379; the above deed of 1884, from De Cordova's administrator to Cox, for the purpose, the bill of exceptions states, "of showing in themselves the defendants' title and good faith improvements made on the land since defendants had possession thereof;" the deed from Cox to Tinsley of December 31, 1884, conveying an undivided half of the land; and the deeds from Tinsley and Cox to Echols, of September 4, 1885. When this case was called for trial there was on file a deposition of Mrs. Catharine Stewart, taken by the plaintiff, as well as a copy of the above deed to De Cordova of April 12, 1854. The defendants moved for a continuance in order that they might take the depositions of Mrs. Stewart and E. J. Hart, Jr.; the motion being based upon two affidavits made by Tinsley. One of those affidavits stated that Tinsley had, then recently, held a conversation with Mrs. Stewart, during which "affiant by her statement was led to believe, and does believe, said deed to be a forgery, and that her evidence concerning the same will be material." The application for a continuance was denied, and that action of the court is assigned for error. But the granting or refusing of such an application Opinion of the Court. was in the discretion of the court, and its action, in that regard, cannot be reviewed on error. And it is here referred to only because of the supposed bearing upon other assignments of error of Tinsley's affidavit relating to the alleged deed to De Cordova. The certified copy of what purported to be the deed of April 12, 1854, to De Cordova set out the specific boundaries of the lands in controversy, and, also, described them as lands containing “nine hundred and sixty acres of land situated and being in Milam District, on the waters of Bull Hide Creek and Cow Bayou," and as "the same which were granted to the heirs of James Stewart, deceased, by virtue of bounty land warrant No. 308, issued to James Stewart by William G. Cook, adjutant general, under a patent from the State of Texas, No. 379, issued from the General Land Office upon the twentyeighth day February, one thousand eight hundred and fiftyfour, as by reference thereunto had will more fully and at large appear." That deed appears to have been signed, sealed and delivered in the presence of two witnesses named, and was certified by E. R. Sprague, commissioner of deeds for the State of Texas, resident in Baltimore, to have been personally acknowledged before him by the several grantors, to be their act and deed, (they being known to him as the individuals described as and professing to be the parties of the first part,) and that Catharine Stewart, being examined out of the presence and hearing of her husband, stated that she executed the same freely, voluntarily and without being induced to do so by fear, threats, ill usage or the displeasure of her husband. On the copy introduced there was no scroll or character showing that the commissioner affixed his seal to the original. To the introduction of the copy the defendants objected, in different forms, and at various stages of the trial, substantially upon these grounds: 1. There was on file an affidavit of forg ery, meaning Tinsley's affidavit used on the application for a continuance of the case. 2. It was not proven as an ancient instrument, because there was no evidence of possession, payment of taxes, or other act by any claimant under the deed, or Opinion of the Court. by any one else, to free it from just grounds of suspicion or to lead the minds of the jury or the court to a conclusion of its genuineness, nor was there any accounting for the absence of the seal from the certificate of the commissioner, Sprague, before whom it purported to have been executed. proof does not show its execution as required under the affidavit of forgery. 3. The After the evidence on both sides was concluded, but before the final submission of the case to the jury, the court stated its view of the law to be that, as no proof had been offered of any act or assertion of ownership under the deed from the heirs of James Stewart to De Cordova, that deed could not be read as an ancient document; in which event the defendants were entitled to a verdict. But, at a subsequent stage of the trial, the court announced that, on further consideration, it was of opinion that "where a common source was shown a party could not go back of the common source to impeach a deed for forgery," and that "the defendants having themselves offered the deed from De Cordova's administrator to Cox, and Cox to Tinsley, and from both to Echols, were concluded on the question of common source and estopped to deny the genuineness of the deed from James Stewart's heirs to De Cordova, or it was immaterial whether said deed was genuine or not.” Upon the subject of title, the court charged the jury: "This is a suit to recover land as described in plaintiff's petition. He has introduced in evidence a chain of title from the government to him in support of his claim. If the description in the marshal's deed to Hart and his partners named in the deed described the land that the plaintiff has sued for, the plaintiff is entitled to recover. The only question as to their title in issue before you is whether the land the sue for is the land described in the marshal's deed. The description, you will bear in mind, is a certain tract or parcel di and containing, by estimation, 898 acres, lying in Milam district, in McLennan County, on Cow Bayou and Bull Hide streams, patented to the heirs of James Stewart for 960 acres. The proof develops that there are two tracts of land patented to Opinion of the Court. The position the heirs of James Stewart, each for 960 acres. of defendants is that this description applies as well, if not better, to the eastern James Stewart No. 380, but plaintiff contends that it does not. Whether the marshal's deed is a deed to No. 379 is the question for you to determine; whether it is described with sufficient distinctness, taking the description in the patent and deed; it conveys the whole grant, if it conveys any. The amount of land, the number of acres, being different in the deed from that in the patent, you are only to consider as a circumstance in connection with all the other proof in your inquiry as to whether the description in the marshal's deed does describe either one of the two James Stewart surveys. The burden is on the plaintiff. You must be satisfied from the proof given that No. 379, the western Stewart grant, is the land described in the marshal's deed before you can find for the plaintiff. If the proof satisfies you that the land the marshal describes in his deed as lying on Bull Hide and Cow Bayou streams is the western Stewart No. 379, then the plaintiff is entitled to recover; if otherwise, the plaintiff cannot recover and your verdict must be for the defendants," etc. To this charge the defendants excepted. Was the deed to De Cordova of April 12, 1854, admissible as evidence in behalf of the plaintiff? The statutes of Texas provide that every instrument of writing which is permitted or required by law to be recorded in the office of the clerk of the county court, and which has been or may be so recorded after being proven or acknowledged in the manner provided by the laws in force at the time of its registration, shall be admitted as evidence without the necessity of proving its execution, provided "the party who wishes to give it in evidence shall file the same among the papers of the suit in which he proposes to use it, at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party or his attorney of record; and unless such opposite party, or some other person for him shall, within three days before the trial of the cause, file an affidavit that he believes such instrument of writing to be forged." Rev. Stats. Texas, 1879, Art. 2257, p. 330. |