| Tex. | Jul 1, 1857
It is not deemed necessary to revise the several . instructions given at the instance of the defendant, and assigned as error. They certainly do not all consist with the charge of the Court, and might well have been refused as not warranted by the evidence. The oi’der of the 15th of March, 1852, is prima facie evidence, as between the plaintiff and defendant, that the former was the owner of the certificate. It empowered him to demand and have the certificate issued to himself as the defendant’s assignee. Taken in connection with the testimony of the witness Billingsley, not objected to nor obnoxious to objection, it established an equitable title in the plaintiff, and amounted to an equitable assignment of the certificate.
The second instruction given at the instance of the defendant, which assumed that it was procured by misrepresentations and in ignorance of the defendant’s rights was not warranted by the evidence, and was calculated to mislead.
There was no evidence that the defendant had asserted any title or claim to the certificate, adverse to the plaintiff’s right, at any time before the institution of the suit, and the statute of limitations cannot avail him. The judgment is erroneous, and must be reversed and the cause remanded.
Reversed and remanded.