28 Tex. 185 | Tex. | 1866
—Of the various errors assigned, all have been abandoned in argument except that which charges the verdict of the jury to be contrary to the law and evidence, and assigns as error the refusal of the court to set aside the verdict on that ground; and as this presents thé only question developed in the record deemed material to a decision of the case, none other will be considered.
The land in controversy was patented on the 26th day of April, 1855, to Bees Lewis. Bees Lewis is proved to have died in 1846, and the appellees are admitted to be his children and heirs. Appellants claim title to the land by virtue of a deed of conveyance from Rees Lewis.to William 8. Beaty, through whom they deraign title to the unconditional head-right certificate of said Lewis, by virtue of which the land was located and patented, alleged to have been executed on the 24th day of February, 1845, and
Plaintiffs made affidavit in the court below in the terms of the statute, denying the execution by Rees Lewis of said deed of transfer, and charging the same to be a forgery.
The only question in the case on which there was a contest in the court below, was as to whether or not this instrument is the act and deed of Rees Lewis. The issue was found against the deed, and judgment rendered in favor of appellees, the heirs of Lewis; and the question for revision here is, as to the sufficiency of the testimony to sustain the verdict. The charge of the court is believed, in the main, to have submitted thq questions at issue with substantial correctness to the jury.
The affidavit of forgery devolved upon"the appellants the burden of proving the execution of the deed in the common-law mode. There were no subscribing witnesses.
For the purpose of proving its execution, appellants introduced the deposition of James M. Long, the officer before whom it purports to have been acknowledged, and who was at the time chief justice of Travis county, and by virtue of his office authorized to take - acknowledgment of deeds for record, and whose certificate, seal, and signature, in the usual form, are found on this deed.
He testifies that he was chief justice of Travis county on the 24th day of February, 1845, and president of the hoard of land commissioners of that county, and that on that day' Rees Lewis, who became personally known to him in 1840, at which time said Lewis lived in Austin, and whom he knew as late as 1845, applied for and received from said board of land commissioners his unconditional head-right certificate for six hundred and forty acres; and that on the same day Rees Lewis acknowledged before him officially, for the purpose qf authentication for record, the execution of the deed of transfer in question, and that his certificate, signature, &e., now appearing on said deed, are genuine,
His description of Bees Lewis, his age, occupation, &c., and his recollection that, in 1840, he lived in Austin with Bichard Bullock, and his impression that he was a Welch-man by birth, in all which he is fully corroborated by witnesses introduced by appellees, show an acquaintance with and a knowledge of the man that utterly precludes any probability that he could have been imposed on by another personating him in the acknowledgment of the deed.
The deed was recorded at Franklin, in Bobertson county, but ^¡fc what time does not appear from the certificate of the clerk indorsed thereon. If permitted to indulge in presumptions respecting the date of its record, we might reasonably infer that the land at that time was included in the limits of Bobertson county, as it is only in the county where the land lies-that deeds are properly and usually recorded, which could not have been later than April 11, 1846, at which time by law the boundaries of that county were defined, so as to exclude from its limits the territory comprising the present county of Ellis.
On the 22d March, 1856, this deed was recorded in Ellis county.
The witness Long is unimpeached, and his testimony is a direct and positive affirmation of facts, which, if true, establish beyond a doubt the genuineness of the deed in question,, and that fit'is the act and deed of Rees Lewis. (Paschal v. Perez, 7 Tex., 348; Edwards v. James, 7 Tex., 372; McKissick v. Colquhoun, 19 Tex., 148.)
By way of rebuttal, the appellees introduced the depositions of several witnesses who, among other things testi
The witness, Watkins, introduced by appellees, among other reasons for believing that Rees Lewis did not execute the deed in question, testifies that W. H. Thompson told him that he had obtained Lewis’s certificate to locate for him, and left soon afterwards, (in the year 1844,) and that from that time until the death of Lewis the latter was making his home at his (witness’) house, or at his neighbor Beaton’s, one mile distant, and was never absent more than a day or two at a time; drawing the inference that he (witness) must have known it if he had executed such a deed during that period. It may be true, that Lewis was never absent more than a day or two at a time, and that day or two may have been the very time when the deed was executed. The unconditional certificate was issued to
It will be seen, by reference to the law regulating the granting of unconditional head-right certificates, that, among other things, it was necessary that Bees Lewis should present himself in proper person before the board, and make the oath prescribed by law, before the unconditional certificate could be properly issued to him. The presumption arises from its issuance that he did so present himself in compliance with the requirements of the law. This presumption, fortifies the testimony of Long, who says, and his certificate on the deed so shows, that it was acknowledged before him on that day.
We have adverted to these as the leading strong points of fact relied on by appellees in rebuttal of the proof made by appellants to sustain the deed, neither of which do we conceive to be inconsistent with the truth of Long’s testimony, or the genuineness of the deed.
The other circumstances proved—such as that the witness never knew Lewis to have $5 at a time in his life, and Lewis’s declarations that he intended to keep this land for his son, &c., while, if accompanied by stronger proof than exists in this case pointing in the same direction, they would doubtless be entitled to consideration by a jury— are, when unsupported, as they are here, too remote and unsatisfactory to claim serious attention.
The testimony in support of the deed is positive and unimpeached.
It is proved, it is true, that Bees Lewis' could neither read nor write; yet it is very clear that, although some other person may have signed his name to the deed, if he acknowledged it, as he is said to have done, he thereby adopted it, and it became his act and deed as truly as if he had signed it with his own hand.
The testimony in rebuttal consists of negative, disjointed
In Cunningham v. The State, speaking of negative testimony, Mr. Justice Lipscomb says: “ One positive witness, whose testimony is not impeached, is worth more than half a dozen who are not certain as to a given fact.” (5 Tex., 440.)
In Patterson v. Gaines, 6 How., 588, Mr. Justice Wayne, in speaking of the effect of negative testimony, says that “ one hundred such witnesses would not be sufficient to impeach the testimony of one witness swearing positively to the fact.”
It is the peculiar and legitimate province of the jury, where the evidence is contradictory, and & verdict must he found on the conflicting statements of witnesses, to decide on the weight and credibility of the testimony; and, on principles long established and repeatedly acted on in this court, their verdict will not be disturbed under such circumstances. And, under any circumstances, a verdict must appear to be clearly wrong to induce this court to set it aside. (Briscoe v. Bronaugh, 1 Tex., 326; Long v. Steiger, 8 Tex., 460; Gammage v. Trawick, 19 Tex., 58.) But it is equally well established that, when the verdict is clearly wrong, where the jury have found manifestly against the whole weight of the evidence, it is not only the right, but the duty of the court to set it aside.
In this case, after making all allowances for the many difficulties attending the proof of a transaction occurring so far back in the past, after all the actors are dead, and when naught but a dim recollection of it remains in the minds of the few survivors who happened to be cognizant of it at the time, we are of opinion that the proof is insufficient to sustain the verdict, and that the court erred in
Reversed "and remanded.