Opinion of the Court. The only affidavit in the record was that of Tinsley filed in support of the application for a continuance. It may well be doubted whether that was such an affidavit as the statute requires in order to impeach a deed. It was not filed for the specific purpose of attacking the genuineness of the deed of 1854, when it should be offered in evidence, but only to obtain a postponement of the trial. There is ground for holding that after being used for that purpose the affidavit had fully performed its functions, and could not be regarded further as attacking that deed. Stribling v. Atkinson, 79 Texas, 162, 164. But without deciding this point, we pass to the consideration of another question which seems to be controlling. The statutes of Texas regulating the pleadings and practice in actions of trespass to try title provide: "It shall not be necessary for the plaintiff to deraign title beyond a common source, and proof of a common source may be made by the plaintiff by certified copies. of the deeds showing a chain' of title to the defendant emanating from and under such common source; but before any such certified copies shall be read in evidence they shall be filed with the papers of the suit three days before the trial and the adverse party served with astice of such filing as in other cases; provided, that such eertified copies shall not be evidence of title in the defendant unless offered in evidence by him, and the plaintiff shall not be precluded from making any legal objection to such certified copies or the originals thereof when introduced by the defendants." Rev. Stats. Texas, 1879, Title 96, c. 1, Art. 4802. In Keys v. Mason, 44 Texas, 140, 142, 143, the court refers to the different modes in which the plaintiff may make a prima facie case as against the possession of the defendant, among which is to prove "that defendant and himself claim the land under a common source of title and that his is the better right or superior title under such 1 In Sayles's Texas Civil Statutes, vol. 2, p. 636, and in some of the decisions of the Supreme Court of Texas, referring to this statute, this word is "claim; " but the original act of September 28, 1871, used the word "chain" Texas Laws 1871, p. 3. common source. Opinion of the Court. Proof of title by the plaintiff in either mode may not conclusively establish his right to the land against the defendant, but it overcomes the presumption of right from his possession, and throws upon him the burden of disproving the plaintiff's case or showing a superior title in himself; as, for example, that he holds a title from the sovereignty of the soil of older date or superior right to that of the plaintiff; that by a subsequent possession to that on which plaintiff counts he has title by prescription, or has barred the plaintiff's right of recovery; or, though he has a title under a common source with plaintiff, he also has, or there is outstanding in a third party, a superior title to that which they claim from the common source, which it must not appear that he is estopped from setting up." In Crabtree v. Whiteselle, 65 Texas, 111, 115, which was an action of trespass to try title to land which had been partitioned among a mother and her children, the part in controversy falling to the mother, the court said: "If there was a mistake in the partition, by which she got more than her share, still what she got was the land in controversy, and by agreeing that she was the common source of title, the appellant is precluded from claiming any interest in the land not derived from her." Again, in Burns v. Goff, 79 Texas, 236, 239: "The rule which renders it unnecessary for a plaintiff to deraign title beyond the common source is one of convenience, and does not deprive a defendant of the right to show that he has the superior right through the common source or otherwise. The statute provides that proof of a common source may be made by the plaintiff by certified copies of a deed showing a claim of title to the defendant emanating from and under such common source.' When a deed is introduced which shows such a claim by a defendant, that is sufficient, although the deed may be for some cause inoperative. If a defendant claims through a purchaser under execution against a plaintiff, the sheriff's deed may not for some cause pass the title, yet such a deed will be sufficient evidence of common source, and the plaintiff need not deraign title beyond himself as common source. If defendant has superior right to the land, whether VOL. CXLV-25 Opinion of the Court. this arises from adverse possession or other fact, this he is not precluded from showing; but, in the absence of some evidence on his part, tending to show such superior right, the plaintiff would be entitled to recover on proof of claim of title emanating from and under the common source, made in the manner prescribed by the statute." See also Pearson v. Flanagan, 52 Texas, 266, 279; Stegall v. Huff, 54 Texas, 192, 197; Sellman v. Hardin, 58 Texas, 86; Calder v. Ramsey, 66 Texas, 218, 219. These adjudications make it clear that it was not necessary for the plaintiff -even if Tinsley's affidavit for continuance was sufficient as an affidavit of forgery under Art. 4802-to prove the genuineness of the alleged deed of April 12, 1854, to De Cordova. He claimed under De Cordova, by virtue of the marshal's deed conveying all his right, title and interest in the lands in dispute. The plaintiff introduced the deed from De Cordova's administrator to Cox for the purpose of showing a common source of title with the defendants. The defendants introduced the same deed without disclaiming the title conveyed by it, for the purpose, the bill of exception distinctly states, (and this court must accept that statement as conclusive,) of showing title in themselves, as well as good faith in making improvements. So that, upon this branch of the case it appearing that the parties claimed under a com the law was clearly for the plaintiff, unless the defendants had established a superior right in themselves, or unless the plaintiff had failed to acquire by the marshal's deed the right, title and interest of De Cordova. mon source In reference to the deed to Cox and Tinsley from Mrs. Stewart and others of November 16, 1889, which was introduced to show a superior title in the defendants-they assuming that the deed of April 12, 1854, was a forgery - it need only be said that there is an entire absence of proof that the grantors in that deed were the heirs either of the patentee, James Stewart, or of William H. Stewart and John T. Stewart. Moreover, we do not find from any of the defendants' numerous requests for instructions that anything was claimed. by them, at the trial, on account of the deed of November 16, 1889, obtained just before the commencement of the trial. Opinion of the Court. So that the vital question in the case is as to the validity of the marshal's deed of September 7, 1858; for that deed, if valid, passed to the plaintiff, before the date of the deed from Davis, administrator, to Cox, the entire interest of De Cor dova the common source of title; but if, for any reason it was void, and if the deed of April 12, 1854, could not have been read in evidence as an ancient document, the plaintiff must fail for want of sufficient proof that he acquired that interest. The marshal's deed recites a judgment, rendered on the 24th day of March, 1856, in favor of Edmond J. Hart, Isaac N. Marks and Barnett B. Hart, for $1061.50, and costs, in the District Court of the United States for the Eastern District of Texas, against J. De Cordova, execution upon which was August 16, 1858, levied on (the deed containing no other description of the premises) " a certain tract or parcel of land as the property of said J. De Cordova, containing, by estimation, eight hundred and ninety acres of land, lying in Milam Land District and County of McLennan, aforesaid, on Cow Bayou and Bull Hide streams, patented to the heirs of James Stewart for nine hundred and sixty acres." It recites, also, the sale of the land at public auction to the plaintiffs in the execution, and conveys to them, their heirs and assigns forever, all the right, title and interest of De Cordova in the land levied on and sold. The defendants objected to the admission of the marshal's deed as evidence upon the ground that it did not sufficiently describe any land, and, if any, noahthe land embraced by patent No. 379. We are of opinion tahtn the charge to the jury in reference to this deed was unobjectionable. In White v. Luning, 93 U. S. 514, 523, this court said: "The policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor, sc as to secure, if it can be done consistently with legal rules the object they were intended to accomplish." And we do n understand that any different rule prevails in Texas. Kingston v. Pickens, 46 Texas, 99, 101, the court says: "T Opinion of the Court. construction of a deed, being a matter of law, is for the court. If, therefore, the land intended to be conveyed by it be so inaccurately described that it appears, on an inspection of the deed, the identity of the land is altogether uncertain and cannot be determined, the court should pronounce it void; but when the uncertainty does not appear upon the face of the deed, but arises from extraneous facts, as in other cases of latent ambiguity, parol evidence is admissible to explain or remove it. In such cases the deed should not be excluded from the jury, but should go to them along with the parol evidence, to explain or remove such ambiguity; and the identity of the land is then a mixed question of law and fact, to be determined by the jury under the instructions of the court." So, in Wilson v. Smith, 50 Texas, 365, 369, the court, referring to a sheriff's deed of land, said: "Certainly the deed cannot be pronounced void upon mere inspection; for it cannot be said that it appears from the face of the deed that the land conveyed cannot be identified by the aid of extrinsic evidence." The case of Brown v. Chambers, 63 Texas, 131, 135, is cited by the defendants in support of their contention. While the court says that no presumption will be indulged in favor of a sheriff's deed for land, that case is not in conflict with previous decisions; for the court says that "the conveyance must contain such a description as will enable the purchaser to find and identify the land," and "if, from the description contained in the sheriff's deed, or deeds or instruments therein referred to, the land can be found and identified with reasonable certainty, then the conveyance will be sustained." It cites with approval the language of a text-writer, who says that "when a deed refers to another deed, or a map, or a survey, it has the effect to incorporate such deed, map or survey into the description, the same as if copied into the deed itself, and what is therein described will pass." Martindale on Conveyances, § 108. See also Flannegan v. Boggess, 46 Texas, 330, 335; Norris v. Пlunt, 51 Texas, 609, 614; Steinbeck v. Stone, 53 Texas, 382, 386; Ragsdale v. Robinson, 48 Texas, 375, 395; Knowles v. Torbitt, 53 Texas, 557. |