58 Tex. 1 | Tex. | 1882
Appellant’s first proposition is that the court erred in refusing to exclude the patent as evidence. The objection to its introduction is based upon a variance between the petition and the patent in respect to the name of the patentee. In the former the name is given as “ George W. Lernoyne,” in the latter as “ George W. Lernoyn.” In a motion filed by appellant for leave to withdraw title papers from the general land office, he states that the land in controversy was patented to Geo. W. Lernoyne by virtue of bounty warrant No. 4431.
To constitute a variance between the pleadings and evidence, the misdescription must be such as to mislead or surprise the adverse party. McClelland v. Smith, 3 Tex., 210; Hays v. Samuels, 55 Tex., 563. An examination of the record discloses the fact that the appellant was neither misled or surprised to his injury by reason of the supposed variance in the name of the patentee.
The evidence of W. B. Lernoyne, to the effect that he had frequently heard his father say that he had served in the war of 1836, was certainly hearsay and inadmissible. That evidence tended to identify the father as the same George Lernoyn to whom bounty warrant No. 4431 was issued. It might have been that, from tin? identity of the name, the jury would have found that the father was the Lernoyn to whom the warrant was issued, without the admission of that hearsay evidence; but we are not able to determine that such would have been the result.
In the body of the bounty warrant we find the following clause, to wit: “ And the said Geo. W. Lernoyn, by his attorney, T. D. Tompkins, is entitled to hold said land, or to sell, alienate, convey and donate the same, and to exercise all rights of ownership over it.”
There is no legitimate evidence in the record tending to show that this clause was not inserted in the warrant at the instance and request of Geo. W. Lernoyn. The presumption will be indulged, in the absence of evidence to the contrary, that the secretary of war acted within the scope of his authority. To overcome that presumption, the burden was upon the appellees to show that the clause under consideration was inserted through fraud, inadvertence or' mistake, or that it was done without the knowledge or consent of Lernoyn. And more especially is this true, where, as in this case, the power is given in the very instrument that creates the right, and where more than forty years, after the exercise of that power by Tompkins, is permitted to elapse before it is contested.
In our opinion Tompkins had the prima facie right or authority to
In this particular the verdict was against the evidence. The court should have submitted to the jury the question of limitation and stale demand, and also the presumption of acquiescence by Lernoyne in the sale and transfer of the certificate or bounty warrant, by reason of the lapse of time and the other circumstances in the case.
We conclude that the judgment ought to be reversed and the cause remanded.
Beveesed and behanded.
