79 Tex. 227 | Tex. | 1891
The land in controversy was granted by virtue of a first class headright certificate issued to Daniel McNeil by the Board of Land Commissioners for Jasper County in December, 1838. The original certificate was issued upon application of Martin Palmer as administrator.
Appellants, who are shown to be entitled as descendants of one Daniel
The court below found that this identity was not shown.
• The evidence shows bqyond controversy that the Daniel McNeil who was the ancestor of plaintiffs was one of Austin's first colonists, and that he applied for and received as such colonist a league of land in that colony in August, 1824.'
The application for the colonial grant was made by Daniel McNeil in person. The fact that he was then recognized as an inhabitant of the colony the grant shows, as does other evidence, and to him in person was juridical possession given.
The evidence of a number of persons, formerly slaves belonging to John McNeil, who also lived in Austin's colony, was introduced for the purpose of showing that they knew Daniel McNeil who lived in that colony, and that, having a general acquaintance throughout much of the then inhabited portion of Texas, they knew of no other Daniel McNeil than the person who was the brother of their master.
These witnesses all- date their arrival in Texas “ten years before the battle of San Jacinto,” and one of them stated that Daniel McNeil came to Texas several years after the witness did.
Another one stated that he did not remember the date of Daniel McNeil's death, but that he did “know that on account’of hard feelings and crossness between himself and wife that he left home for Bast Texas, and died some four or five years after I came to Texas.”
■ Some of these witnesses testify that their master, when he first came to Texas, stopped for a short time in Jasper County and subsequently came to Austin's colony, where he remained.
The only other evidence tending to show that Daniel McNeil ever lived in Jasper County was that of one of -his grandsons, who was forty-seven years of age at the time he testified. His statement was: “After he died my grandmother lived and died at my father's house. I have often heard her speak of my grandfather, Daniel McNeil, having lived in Jasper County, Texas; that they first settled on the red lands in Jasper County.”
The report of the Board of Land Commissioners for Jasper County, filed in the General Land Office, shows that the Daniel McNeil to whom they issued the land certificate by" virtue of which the land in question was granted immigrated to Texas in 1826.
There is no doubt that identity of name is ordinarily deemed sufficient evidence of identity of person, but the strength of the presumption arising from such evidence depends largely upon circumstances, which may make the evidence of identity very strong or may defeat entirely the presump
For the plaintiffs we have evidence that the name of their ancestor was Daniel McNeil, and that he in 1824 resided in Austin’s colony with his family, where he received a grant as a colonist. Th e d eclaration of Mrs. McNeil would tend to show that at some time prior to the time when he settled in Austin’s colony he may have resided in Jasper County, but there is no evidence that after he left the colony he was ever in that county again.
If this was all the evidence, it may be had the finding of the court below been in favor of plaintiffs that it would not here be set aside.
Having received a league of land as a colonist, neither the ancestor nor his descendants were entitled to the land certificate issued in Jasper County in 1838.
That certificate was issued by the land commissioners for that county under the Act of December 14, 1837, before whom it was necessary to prove, among other facts, when the person in whose right a certificate was asked immigrated to the Republic, and that fact was required to be stated in the report of the board required to be filed in the General Land Office. Pasch. Dig., arts. 4129, 4140, 4142.
It was the duty of that board to investigate fully every fact bearing on the right of the applicant to a certificate, and one leading fact bearing on that question was whether the applicant or person on account of whom a certificate was asked had already received the land to which he was entitled on account of immigration and residence.
If the immigrant made application, it was necessary for him to in aka affidavit "that he had not previously received a title to his quantum of land.”
The boards created by subsequent acts to detect fraudulent land certificates were required to re-examine the rights of those who held certificates issued by former boards, and to ascertain whether they had been issued to persons entitled thereto.
Their duties required that again they should make the inquiry whether the person holding a certificate had received his quantum of land before the certificate issued.
It must be presumed that both of these boards discharged their duties • faithfully, and if so the inference follows that proof 'ttfas made that in December, 1838, the Daniel McNeil to whom the certificate was issued had not received his headright league of land, while the evidence conclusively shows that this was not true of the ancestor of plaintiffs.
From the action of these boards it must be further presumed that proof was made before them that the Daniel McNeil to whom the certificate’ issued immigrated to Texas in 1826, -whereas the evidence before us shows, conclusively that the ancestor of plaintiffs settled in Texas as early as the year 1824.
The land in question was patented in 1876, and was not located until some time after October, 1873, when a duplicate certificate was obtained and probably located by persons having no right to it whatever.
During the time intervening the original issuance of the certificate and the institution- of this suit no claim is shown to have been asserted by plaintiffs, although the inference is that they have been residents of Texas.
Notwithstanding the identity of name, we are of opinion that the evidence justified the holding of the court below that the plaintiffs, on whom rested the burden of proof, had not shown that the land certificate in question was issued to their ancestor.
If the fact be as claimed by plaintiffs it seems to us that evidence might have been brought to establish it.
We think there was no error in the admission of the colonial grant to plaintiffs’ ancestor, nor in the admission of the report of the Land Board showing the issuance of the certificate in question, for they each showed facts having a bearing on the question of identity.
The testimony of the Commissioner of the Land Office showed no material fact not shown by the copy of the report which he furnished as an exhibit, and could not have affected the rights of the parties either way; and both parties seem to have consented that all evidence offered might go before the judge and be considered so far as he deemed it proper.
We find no error in the proceedings that led to the judgment, and it will be affirmed.
Affirmed.