25 Tex. 54 | Tex. | 1860
The defendant’s was the elder and superior titler and must prevail, unless on the principle of the decision in Guilbeau v. Mays (15 Tex., 410,) the plaintiff’s right is preferred as having been acquired without notice of the elder grant. The decision below turned upon the question of notice, and this appeal brings under revision the rulings of the court excluding evidence offered by the plaintiff to rebut the evidence of notice introduced by the defendant.
The evidence of notice relied on by the defendant, was the testimony of witnesses to the effect, that it was a matter of notoriety in the neighborhood of the land in question, that it was the head-right of Smothers, under whom the defendant claims, long before the plaintiff’s title had its inception; that the plaintiff’s vendor had actual notice of the existence of this claim; the field-notes of the plaintiff’s survey reciting that it is “a re-survey of a third of a league of land surveyed for Archibald Smothers, A. D. 18-38-;”
It cannot be doubted that this evidence was amply sufficient to entitle the defendant to a verdict, as well upon the doctrines propounded by the court in Guilbeau v. Mays (15 Tex. R., 416, et seq.) as upon the authority of Byrne v. Fagan, (16 Tex. R., 391;) for upon the authority of the latter case the depositions of the officers of the Land Office authorized the presumption .that the original title was deposited in that office in due time, and that, of itself, was sufficient notice to the subsequent locator.
The deposition of the witness, Phillips, was offered by the plaintiff, to rebut this evidence of notice, by proving that, in point of fact, the original title of Smothers was not deposited in the Land Office until a time subsequent to the date of the plaintiff’s patent. The deposition certainly tended strongly to that conclusion. But it was excluded on the ground that the witness was incompetent to testify to the facts to which he deposed, because he was not an officer in the Land Office. In this we think there was error. The deposition was not offered for the purpose of showing what appeared by the records of that office. Its effect was not to contradict the record. The Commissioner states in his deposition, that there is nothing of record in the office showing when the title was in fact deposited; but he concludes it must have been prior to the 10th of December, 1848. It was certainly permissible to show by any witness who possessed competent knowledge of the fact when the title was so deposited, in order to rebut this evidence, and to repel the presumption arising from the fact that the title is found in the Land Office, that it was deposited there in due time. The portion of the deposition which relates to the examination the witness made in the Land Office, and what was shown by the records of that office, was justly liable to the objection that the keepers of the records were the proper persons to depose to those facts, and not the witness, who could not be supposed to have equal means of information upon that subject. So much of the deposition might have been suppressed upon a motion to that effect. But
We think the court also erroneously excluded the certificate and field notes of the survey made thereon of a third-of a league of land for Smothers in 1888. It appears that this survey was made to include the same land embraced in the title to a fourth of a league previously issued to Smothers, and now claimed by the defendant; but as the certificate was not recommended by the board of land commissioners, it was never ^perfected into a patent, but became worthless. After the evidence of notice introduced by the defendant, this evidence became very material to the plaintiff for the purpose of showing to what the notice had reference, whether to the original title, which was a valid title, or to the certificate and survey which were invalid, and interposed no legal obstacle to the appropriation of the land by the certificate upon which the plaintiff’s title was obtained. It was admissible as rebutting evidence, tending to show that the claim of which the subsequent locator had notice, was not the title to the fourth of a league, but the unrecommended certificate and survey of a third of a league, and thug to rebut the presumption of notice. If it be shown that the locator knew of the existence of the elder title, it is immaterial in what manner he obtained the information; he acquired no right by his location as against the holder of that title. Or if the title was deposited in the General Land Office prior to the acquisition of his right, that is such constructive notice as cannot be rebutted. It raises a conclusive legal presumption of notice. (Byrne v. Fagan, 16 Tex. R., cited supra.) But if the locator had no other notice than the notoriety of the claim in the neighborhood, as the headright of Smothers, and the statements to that effect of third persons, and the third of a league survey of 1838, and it be shown that on inquiry conducted in the usual course of such investigations, he would not have obtained a knowledge of the existence of the title, but would have found that the land had been surveyed upon the head right certificate of Smothers, which had not been
We think the proposed testimony of the witness Greenwood as to the declarations- of Wm. Smothers was properly excluded. (Luter v. Rose, 20 Tex. R., 639.) But, for the errors we have indicated, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
