Case No. 5822 | Tex. | Jun 22, 1886
This was an action of trespass to try title to one-third of a league of land in Hvalde county by the heirs of George Stealey, deceased, against the Galveston, Harrisburg & San Antonio Bailway Company. The land was patented on March 28, 1854, to Geo. W. Steamier, and the plaintiffs claimed to own it by a deed made by Geo. W. Stramler to George Stealey on July 4, 1846. The plaintiffs weré admitted to be the heirs at law of Stealey, and they were entitled to recover the land, and the judgment below in their favor should be affirmed, if the deed of July 4, 1846, was made by the patentee. The genuineness of this deed was the matter in controversy.
The original paper was lost, but it had been recorded on December 13, 1853, in the registry of Bexar county, and a certified copy was used upon the trial. At the time of trial the deed was over thirty years old. It has been held by this court that when the original ancient instrument is lost, a certified copy may be introduced upon the same proof that would have made the original admissible, if it could be produced. Holmes v. Coryell, 58 Tex., 687, 688.
There was no error in permitting the certified copy to be used in the place of the original, on proof of the loss of the original. There is no affidavit of loss in the record; but the parties have corrected the transcript in this particular by an agreement on file to the effect that the statutory affidavit was made. Ho point is made upon the sufficiency of such an affidavit to warrant the. introduction of secondary evidence of the contents of an instrument, excluded by an affidavit of forgery from the benefit of the provisions of the statute respecting the introduction of registered papers. Any question arising from the fact
The land in controversy was surveyed by virtue of the Stramler certificate in 1849, and in 1854 P. DeCordova had in his possession, as a sub-agent of Stealey, the original deed from Stramler to Stealey, and he sent it for record to Bexar county. He also paid the land office fees and obtained for Stealey the patent to the land. From this evidence it is fairly inferable that Stealey had possession of the certificate under his deed from Stramler as early as 1849, and that he caused it to be located, and the land to be surveyed and patented, in the open assertion of his title under the deed from Stramler. His deed was recorded after the survey had fixed the proper place of registration, and before the date of the patent. The custody of the deed being sufficiently accounted for in the affidavit of its loss, the proof of the facts above recited would entitle the plaintiffs to introduce in evidence the copy, and would also be sufficient, in the absence of any countervailing evidence, to establish the genuineness of the paper.
But the grantee of the certificate and the patentee of the land had a "b” in his name not found in the signature of Stealey’s vendor. Unless Stealey’s vendor was the patentee of the land, though the deed was fully proved, the plaintiffs fail to establish any title. It is difficult to pronounce Strambler and Stramler so as to make any noticeable distinction in the sounds. But if the pronunciations were identical, the question would remain was Stealey’s vendor the man who owned the certificate? This is a question of fact, raised by the difference of the names, upon which their similarity is pertinent and important, but not conclusive evidence.
The court below determined that Stramler, the vendor of Stealey, was Strambler, the grantee of the certificate, and if there was legitimate testimony sufficient to sustain this conclusion, the judgment will not be disturbed, even though improper evidence bearing on the point was erroneously admitted. The circumstances bearing upon this point are neither numerous nor very strong. The certificate was granted to Strambler by the board of land commissioners for Montgomery county, on the proof that the grantee had arrived in the country on June 1, 1836. There was proof that a man of that name
With the exception of the deed made to Fry in 1882, there was no evidence that the grantee of the certificate ever asserted any right to it after the date'of Stealey’s deed. There was no proof of the genuineness of the deed to Fry. If the grantee of the certificate was the Strambler that lived in Montgomery county, it is highly probable that he was dead before 1882. There is no doubt that Geo. W. Stram-Mer, who was the step-father of W. D. Anderson, was the Geo. W. Stramler testified about by Grimes, and he was also the uncle of Mrs. Ore. He was the grantee of the certificate. His step-son, Anderson, spells the grantee’s name with a "b,” his niece, who bore the same surname, spelled it without the "b.”
This testimony was sufficient to sustain the belief that the grantee of the certificate spelled his name without a "b,” and that Stealey’s vendor and the grantee of the certificate were one and the same person. Independent of what Mrs. Ore heard from the Beebe’s, there was ample evidence to support the conclusion that Mrs. Ore’s uncle, Anderson’s step-father, and Grimes’ acquaintance, was dead long before 1882. He was never heard of alive by any of these parties after 1855 or 1856. R. S., Art. 3221.
If the answer of Mrs. Ore to the final interrogatory was irrelevant, it did no harm. If it was not responsive to the question, it was too late to make the point in the trial of the case.
The judgment below is affirmed.
Aefibmed.
[Opinion delivered June 22, 1886.]