Ansaldua v. Schwing

Counsel

J.A. Carroll, for appellants. — 1. No paper should be admitted in testimony which is unintelligible and has no reference to the case at bar. The paper called "the report of the traveling board" is unintelligible, and neither it nor the field notes had any reference to the case at bar. 2. A copy of a deed not duly registered in the county where the land is situated is not admissible. This copy was a copy of a deed for a league and labor of land in Nacogdoches County. 3. A deed acknowledged before a deputy clerk in 1838, without disclosing the principal clerk, is not duly authenticated for registration. The deed in this case purports to have been acknowledged before R. Parmelee, deputy clerk. 4. Where the plaintiffs show a right of recovery and the defendants fail to rebut the plaintiffs' case judgment should be rendered for plaintiffs. D.A. Holman, for appellees H.P. Thompson, J.H. Thompson, M.A. Chatham, _____ Chatham, J.F. Goodwin, J.A. Nickell; Carswell Fuller, for appellee Bates. — 1. The report of the traveling board was admissible to show how the original headright certificate of Rosalis for one league and one labor of land No. 573 was diminished to one-third of a league, and to identify that headright with land in controversy. 2. The copy of a survey made under original headright certificate No. 573 in Nacogdoches County, June 1, 1838, was admissible to show its location, to thereby authorize registration, and give notice and evidence of sale and ownership, not only of lands conveyed, but of headright certificate by virtue of which it was located. Until located registration was not authorized: Simpson v. Chapman, 45 Tex. 560 ; Stone v. Brown, 54 Tex. 344 [ 54 Tex. 344 ]; Watkins v. Gilkerson, 10 Tex. 340 [ 10 Tex. 340 ]; Randon v. Barton, 4 Tex. 292 ; Johnson v. Newman, 43 Tex. 640 ; Evans v. Hardeman, 15 Tex. 480 . After location may be: Shifflet v. Morelle, 4 S.W. Rep., 846. Object to give notice: Crosby v. Huston, 1 Tex. 203 ; Rev. Stats., art. 4342. Rule of evidence: Pasture Co. v. Preston, 65 Tex. 448 ; Hanwell v. Lumber Co., 65 Tex. 225 ; Holmes v. Coryell, 58 Tex. 685 . 3. It was admissible as strong corroborative proof of the ancient existence of the deed from Cruez to Clark and Clary. It locates the same headright certificate, auxiliary as to time, and recites that it was made for Clark and Clary, assignees of Juan Cruez, assignee of Rosalis. Belcher v. Fox, 60 Tex. 530 ; Stroud v. Springfield, 28 Tex. 664 . 4. It, in connection with the deed from Cruez to Clark and Clary, was properly admitted in evidence of the staleness of plaintiffs' demand, as an open and recorded notice of assertion to ownership of the certificate and lands located under it for fifty years before plaintiffs by themselves or their ancestor made any effort to repel our claim. Bomar v. Parker, 4 S.W. Rep., 603. 5. It, in connection with the Cruez deed and the testimony of Hall, Commissioner of the General Land Office, was admissible to prove location, sale, and abandonment of that location, and rightful claim to present location. Poor v. Boyce, 12 Tex. 440 [ 12 Tex. 440 ]; Lewis v. Durst, 10 Tex. 398 . 6. The deed was authenticated for registration. It was acknowledged by the grantor before R. Parmelee, deputy county clerk of Nacogdoches County, Republic of Texas, and by him as such recorded. Gen. Laws Republic of Texas, vol. 1, p. 155, sec. 35; Gen. Laws Republic of Texas, vol. 2, p. 111, secs. 1 and 2; Rose v. Newman, 26 Tex. 134 ; Cook v. Knott, 28 Tex. 85 [ 28 Tex. 85 ]; Frizzell v. Johnson, 30 Tex. 35 ; Wert v. Schneider Davis, 64 Tex. 330 ; Acts 1862, sec. 1, p. 57; Acts 1870, p. 49; Rev. Stats. art. 1146. 7. Said deed is a conveyance of the original headright certificate upon which the patent issued, and evidences the superior equitable title to the land in controversy. Location of the certificate merges the certificate in the lands located, so that sale of the land carries with it the sale of the certificate; and if patented in the name of original assignee the patentee or his heirs acquire thereby only the naked legal title for the benefit and perfection of title in the real owner of the certificate. Traylor v. Lide, 7 S.W. Rep., 62; Keyes v. Railway, 50 Tex. 174 ; Herman v. Reynolds, 52 Tex. 391 .