Thomson v. Hines

59 Tex. 525 | Tex. | 1883

Walker, P. J. Com. Apr. —

Unless facts or circumstances exist which tend to rebut the inference that a written contract “or obligation was delivered to the obligee, its possession by the latter, or by one claiming it through or under him, prima facie implies a delivery of it by the obligor or grantor; and possession of it by the obligee or grantee, or their assigns, is prima facie evidence of ownership.

The plaintiff claimed title to the land under these transfers of the certificate, by virtue of which the patent through which she claimed ownership had issued, and it was competent for her to establish her chain of title from the original grantor by evidence showing a transfer by him and the successive owners thereof down to herself. The transfers in question constitute the links which connect her wdth title to the land, and the facts essential to make them operative as evidence of the respective assignors of the certificate having conveyed and transferred their interests in it, may be established as well by circumstantial as by direct and positive evidence.

The certificate was a bounty land certificate or warrant for military services, and on its face was made alienable by the grantee, and “ transferable by indorsement, with a deed before any competent authority with witnesses to the same.” The transfers are full and formal assignments of the interests of the respective grantors, indorsed on the certificate. Thus indorsed they were presented to and approved by the commissioner of land claims in 1859, and in the same condition they are found in the general land office, whence a patent had been issued to the original grantee for the land which had been surveyed by virtue of them; patent dated November 8, 1875.

These facts import upon the face of the instruments of writing, that, at least, they were executed for delivery by Abraham Blunt and by B. A. Foreman at the respective dates of the several transfers. The indorsement of transfer by Foreman, at a date subsequent to the date of Blunt’s indorsement of transfer, until otherwise explained, implies the possession of the certificate by Foreman when he made his transfer upon the certificate, and, until rebutted, surely ■establishes, to a reasonable certainty, that Blunt had delivered the certificate to him under the assignment which he made. If a deed is found in the grantee’s hands, a delivery and acceptance is always presumed. 8 Washb. Beal Prop. (4th ed.), 294. And the execution of a deed in the presence of an attesting witness is evidence from which a delivery may be inferred. Id., 294. Where the deed is delivered to the grantee named, the law presumes it was done with an intent, on the part of the grantor, to make his deed effectual. Id., 295. ° The indorsement by Foreman, on the back of the certificate, showing a voluntary alienation and transfer of his right to all interest to or in it, affords, of and in itself, evidence from which a delivery to the assignees, Patton & Gorman, ought to be inferred, unless circumstances or facts are shown to cast a doubt upon the correctness of such a conclusion; as instance the continued subsequent possession of the certificate and transfer by Foreman, under circumstances which did not develop any right of said assignees to demand from him. the possession or control of the certificate, nor any consideration moving to Foreman, which would impose on him a duty or obligation to so deliver it.

But the case here is different. The certificate and transfer to Patton & Gorman were passed through the various official channels which the law provided for, to enable the owner of the certificate to obtain the proper evidence of its genuineness and validity, and to procure from the state the land which it called for, with the solemn written declaration indorsed upon it in due form by Foreman, disclaiming its ownership and asserting that it belonged to Patton & Gorman. If he had intended the written transfer thus made as provisional merely, and did not mean to deliver the certificate to them, it would be doing violence to reason to suppose that he would thus have acted. On the contrary, he would have erased and canceled the transfer, as he certainly had a right to do, if there had been no delivery of it, actual or constructive, and he had not intended to give effect to the transfer he had written.

We are clearly of opinion that the court did not err in admitting the evidence.

We conclude that the judgment ought to be affirmed.

Affirmed.

[Opinion approved June 1, 1883.]