35 Tex. 82 | Tex. | 1872
In 1867, the appellee obtained a judgment in the district court, and the cause was brought to this court by the appellant, when the judgment was reversed, and the cause remanded. In 1870, it was again submitted to a jury in the district court, upon thirty-eight special issues. From the judgment rendered upon the verdict of the jury, the appellant has appealed again to this court, and assigns several errors as causes for a reversal of the judgment. It is not deemed necessary to notice each assignment in its order, as the determination of the last will dispose of the others.
This was an action of trespass to try title, in which the plaintiff must recover, if at all, on the strength of his own title, and not upon the weakness of, or want of- title in, the defendant in possession. In other words, the plaintiff, in order to entitle him to recover as against a naked possessor, must show that he is the absolute owner of the land in controversy, not only as
In this cause the various findings of the jury in the lower court, which are not complained of here, have settled many questions which might otherwise have been left doubtful; and we shall therefore only refer to them, in order to a correct understanding of those questions which are not acquiesced in. From the verdict of the jury, the fact is established, that in 1858, the plaintiff became the undisputed owner of a grant, or patent, to the land in question, issued by the Republic of Texas to Amy Dunman, in the year 1841. This would have given appellant an absolute title to the land, precursive of all others, and should have entitled him to a judgment in this cause, provided that no other title, of .grant, for the same land had issued from the State, previous to the issuance of the patent to Amy Dunman. The jury further find, that a grant for the same land did issue from the State to Hiram Blossom, in 1835, and that the appellant held a regular transfer of title to the same land from Blossom, made in 1842. The validity of the grant to Blossom, in 1835, is not questioned by either party to this suit, and must therefore be considered as vesting the title in Blossom at the time of the grant. It follows, that as the State had. parted with the title in 1835, it had no title or interest in the land in 1841, to grant to Amy Dunman, and she and her assignee received none by virtue of the patent issued to her.
But appellant still had a prima facie good and valid title to the land by virtue of the conveyance from Blossom to Watson in 1842, and the judgment of the lower court should have been in his favor, unless the defend
The jury found that the defendant did receive a conveyance for six hundred and forty acres of the land in 1850; but as this conveyance was many years subsequent to the deed to appellant, it cannot be considered as forming a superior or adverse title to the claim of the plaintiff below, and need not be further noticed in this opinion. But the defendant introduced proof to establish a superior outstanding title in A. S. Johnson; and the findings of the jury in reference to this outstanding title, and the rulings of the court in reference to the testimony offered to prove that title, are the subject matter of appellant’s complaint in this court.
On the trial of the cause in the court below, the defendants offered in evidence a certified copy from the records of JSTacogdoches county of a power of attorney from Franklin and E. M. Fuller to Frost Thorn, dated October 14, 1835, and also a certified copy of a deed of the same date from Thorn, as agent of Blossom, to Brookfield, for the land now claimed by appellant. The -plaintiff objected to the reading of the instruments in ^evidence, because the same were copies, and the absence -of the originals were unaccounted for; because the same had not been filed in the cause, and notice of such filing given to the plaintiff; because there was no evidence that the originals had been filed in the office of any alcalde or judge previous to February, 1837; and because of the insufficiency of the clerk’s certificates to the same. The objections were overruled by the court and the plaintiff excepted. These instruments appear to have been executed with all the requisite formalities to constitute public or authentic acts, under the laws in force at the date of their execution, and were therefore
Plaintiffs also objected to the introduction of the instruments, because there was no proof that Fuller had any power or authority from Blossom to convey, or to-authorize any other person to convey, the land in question. There was no power of attorney from Blossom to Fuller directly proven, but Fuller, as the agent of Blossom, executes a power to Frost Thorn to convey the land, with a power of substitution. Fuller, as agent and attorney of Blossom, applied to the com
We think there can be no doubt that the court was sustained by authority in presuming, after the lapse of many years, that such power existed (Daily v. Starr, 26 Texas, 565, and Watrous v. McGrew, 16 Texas, 513); and, in the latter case, the court says: “ The act being proved, afforded proof of its contents. It recites the production of the power, and is evidence that such an instrument was produced.” But appellants claim, that in the case at bar, the judge of the first instance certifies to a power shown him to sell, but not a power to substitute, and that therefore it could be no proof that Fuller had any power to substitute Thorn. We cannot so understand the language of the certificate of the judge, in the power to Thorn, viz : “And by virtue of an extra judicial power of attorney also shown me,” they give and confer their power. The language demonstrates the fact that the power shown to the judge was emphatically a power of substitution, whatever other authority it might have contained. We are, therefore, of the opinion, that the court properly overruled the plaintiffs’ exceptions to the introduction of these instruments of writing, as evidence to the jury; and consequently we must decide that plaintiff’s exceptions to the fourteenth, sixteenth and seventeenth findings of the jury, and the rulings of the court below in relation to the same, as pointed out in the assignment of errors, were not well taken.
This view of the case must necessarily settle the
Affirmed.