Dikes v. Miller and Neill, 11 Tex. 98

Wheeler, J. It is objected to the judgment, that the Court erred, 1st, in requiring the plaintiff" to read, as a part of his evidence of title, the paper purporting to be a conveyance from Wickson to the government; 2nd, in the instruction to the jury. The ground on which the Court required the plaintiff to read in evidence the conveyance or release from Wickson to the government, evidently was, that it was brought into Court by him as a part of his title. But in this, we think, the Court erred.

There was no evidence of the genuineness of the instrument, nor does it appear how or when it came into the possession of the Commissioner of the General Land Office. It was not an instrument which belonged to his official custody; and consequently was not one of which he was authorized to give certified copies, to be used as evidence. It manifestly was not a part of the plaintiff’s title; and the fact that it was attached to it by the Commissioner, did not, in our opinion, impose upon the plaintiff the necessity of introducing it in evidence.

But if this instrument were properly before the jury, as between the parties and under the evidence in the case, it was not entitled to the effect given to it by the instruction of the Court. It does not appear ever to have been recorded, nor was notice of its existence brought to the plaintiff or his grant- or, Arrington. Neither was there any evidence that, at the time of his purchase, Arrington had notice of any adverse claim to the land.

It was in proof that the defendants placed a tenant in possession, claiming the- land, in 1844; but whether before or after the conveyance by Wickson to Arrington, does not appear; and this tenant subsequently acknowledged the right of Arrington, and attorned to him. As presented by the evidence in the record, it is clear that the plaintiff is to be regarded as an innocent purchaser, not affected by notice of the instrument in question, nor of any adverse claim to the land.

In the view we have taken, it is unnecessary to inquire what may have been the effect of the instrument in question, as between the maker and the government, or a subsequent locator; or whether, in the abstract, the charge of the Court was correct, as to its legal effect.

I apprehend, however, it will admit of a serious question, whether a party who has received a grant to land, can relinquish it, and divest himself of the title, in this manner, for the purpose of obtaining another grant or of validating one already obtained, or for any other purpose, without the assent of the government, expressed by some legislative act, or some provision of the law to that effect.

But whether the charge of the Court was correct or not, in the abstract, in its application to the evidence, it was, we think, erroneous; and we are therefore of opinion that the judgment be reversed and the cause remanded. Reversed and remanded.