Mandred Stroud v. James M. Springfield, 28 Tex. 649

Coke, J. —This is an action of trespass to try title, commenced in the District Court of Falls county by the appellant, against the appellees, for the recovery of the southeast half of the league of land originally granted to Archibald Powell, and alleged to be situated in Falls county. The appellees went to trial on the plea “not guilty.” The appellant’s chain of title from Archibald Powell, the original grantee, down to himself, is admitted to be perfect. The appellees .exhibit no paper title.

They defend exclusively on the ground that the land described in appellant’s title deeds and in his petition is not the same that they are possessed of. The contest is as to the locus in quo of the Archibald Powell league. There were a verdict and judgment for the appellees, (defendants in court below,) motion for new trial overruled, and the case is brought to this court by appeal. Various errors are assigned, which will be considered in the order of their assignment. The first is, that the court erred in the rejection of the testimony offered, as indicated by plaintiff’s bill of exceptions No. 1.

We are of opinion that this assignment is not well taken, and that the documents described in this bill of exceptions, when offered as evidence, were properly rejected. They are not authenticated in any mode, or offered under any sanction known to the law, which entitle them to admission and standing in court as instruments of evidence.

It is insisted by appellant’s counsel that these documents, being twenty-five years old when offered as evidence, were ancient writings, purporting to have been made and signed by Joshua Hadley, who is proved to have been a deputy surveyor, and to have been found among the old surveying papers of Pierson, the surveyor general of the district in which the land was then situated, and brought forward by his son, John H.

Pierson; that they came from the proper custody, and prove themselves; and that, Pier-son and Hadley both being dead, they are admissible, as their declarations, as part of the original res gesta on the question of boundary involved in this case. It is one of the fundamental rules of evidence, that all private writings must be proved to be genuine before they can be admitted as evidence.

One of the exceptions to this general rule is where a deed is thirty years old, in which case it is said to prove itself: the subscribing witnesses being presumed to be dead, and other proof being presumed to be beyond the reach of the party. (1 Greenl. on Ev., §§ 657, 570.) In order to have this effect, such an instrument must be free from susjficion, and come from .the proper custody, and must have been acted on so as to afford some corroborative proof of its genuineness.

The principle on which this exception to the general rule is founded would seem applicable to ancient writings of any description which might be evidence of present rights. It has been held that proof of possession under or referable to an ancient deed, and running with it, is indispensable to its admissibility. (12 Leigh, 524; Lewis v. Laroway, 3 Johns. Cas., 283; Jackson ex dem. Burnham v.

Blanshard, 3 Johns., 292.) But the weight .of authority seems to have established the principle, that when proof of possession cannot be had, the deed may be read upon proof of other circumstances corroborative of its genuineness. (1 Greenl. on Ev., § 145 and authorities in note.) What circumstances of corroboration shall be necessary to authenticate a deed or other writing offered under this exception to the general rule, which requires proof of execution, must greatly depend in each case upon the purpose and character 'Of the instrument.

They must he auxiliary to its apjiarent antiquity, and sufficient to raise a reasonable presumption of its genuineness. If “exhibitX,” which imbodies a substantial copy of the field-notes of the Powell league, in addition to the corroborating circumstances surrounding it, had been aided by slight evidence sustaining the genuineness of the handwriting as that of either Hadley, the deputy, or of Pierson, the principal, it might properly have been admitted to the jury as evidence. (Sample v. Robb, 4 Harr., 307, 16 Pa. St.; Urket v. Coryell, 5 Watts. & Serg., 60; Warren v.

Lane, 5 S. & R., 60.) But offered as it was, so far as the record shows, without an effort to prove the handwriting, when McCoy, who carried the chain for Hadley and helped him survey this very Powell- league, and lived in the house with him nearly a year, and John H. Pierson, the son of the surveyor general, the man who found these documents among his father’s old papers, were both present at the trial and witnesses in the case, both of whom ought in reason to have had some acquaintance with the handwriting of both Hadley and Pierson, we think it was clearly right to exclude it.

This failure or omission of itself excites a suspicion of the genuineness of the paper; suspicion which - is strengthened, when, it is considered that both Hadley and Pierson were public and prominent officers of the-government, with whose genuine handwriting a great many persons are likely to be acquainted. “Exhibit Y,” the other paper embraced in this bill of exceptions, contains what purports to be the field-notes of a league of land surveyed for one Whitaker. It is admitted that this land was never titled to Whitaker, and that the field-notes are not to be found in the general land office.

It is conjectured that this league of land was in 1845, ten years after the date of “exhibit Y,” patented to one Carpenter. Ho other survey is shown to call for the Whitaker survey. There is not a single circumstance corroborative of the genuineness or antiquity of this paper, except that it is found among the old papers of Pierson. Ho act or conduct of any person referable to it is proved, no right is shown to have been claimed under it, no record of it is found, no such survey has ever been mapped.

It is offered in evidence a naked, isolated, unproved, and uncorroborated paper, with an additional presumption against it, arising from the failure of the appellant to make an effort to prove its genuineness, when it may reasonably be supposed that, if genuine, some proof of it might be obtained. That such a paper, under the circumstances surrounding it, should not be admitted as evidence is too plain for argument.

The inadmissibility of either one of these papers would have been sufficient to sustain the ruling of the court excluding both, because they were offered together, and, as far as the object with which they were sought to be introduced can be gathered from the record and the bill of exceptions, the rejection of either would have rendered the other unimportant.

If the genuineness of these papers had been sufficiently proved, we are of opinion that they would have been admissible in evidence as the declarations of the party making them, for the purpose of aiding in the ascertainment of the boundaries of the Powell league. In Speer v.

Coate, 3 McCord, 229, in reference to the declarations of a deceased chain-carrier who had pointed out to the witness a certain corner-tree of the survey, it is said by the court, “It cannot be doubted at this day that the declarations of deceased persons who shall appear to have been in a situation to possess the information, and are not interested, shall, on a question of boundary, be received in evidence.” The same doctrine is, if possible, more strongly asserted in Blythe v.

Sutherland, Id., 259, where the declarations of a deceased surveyor, who had pointed out to the witness a corner of the survey, were ruled admissible. This latter case is cited with apparent approbation by Chief Justice Wheeler, in delivering the opinion of this court, in George v. Thomas, 16 Tex., 92. It was not pretended, in either of these cases, that the declarations were a part of the res gesta. Evidence of this character, except when it was a part of the original res gesta, was not admissible at common law to prove the boundaries of a private estate.

Its admission was restricted to cases involving questions of a general or public nature. If the matter in controversy were ancient, and not susceptible of better evidence, any proof in the nature of traditionary declarations, whether oral or written, if it appeared that they were made by parties having competent knowledge, was receivable, subject to the qualification that it must be a matter of public or general interest. (White v. Lisle, 4 Madd. Ch., 214, 224; Doe v.

Thomas, 14 East., 323; 1 Greenl. on Ev., §§ 138, 139.) The question of the admissibility of this character of evidence seems to have turned upon the nature of the reputed fact, whether it were of interest to one party only or to many. If the latter, it was admissible; if the former, it was excluded. The tendency of American decisions has been to break in upon this rule of the common law, in reference to questions of private boundary, and to remove the restrictions which exclude evidence of this character in such cases. This has been the result of necessity.

Our landmarks are usually of perishable materials, and by the settlement and improvement of the country,, and from other' causes, they are constantly being destroyed. It is therefore indispensable in many cases that hearsay or reputation should be received to establish old boundaries. (Boardman et al. v. Lessees of Reed et al., 6 Peters, 341; 1 Greenl. on Ev., § 145, and authorities cited in note; Sample v. Robb, 4 Harr., 307.) In Sasser v.

Herring, 3 Den., 340, the chief justice, delivering the opinion of the court, said: “We have in questions of boundary given to the single declarations of a deceased individual, as to a lien or corner, the weight of common reputation, and permitted such declarations to be proved, under the rule that in questions of boundary hearsay is evidence. Whether this is within the reason and spirit of the rule is now too late to inquire; it is the well-established law of this State.

And if the propriety of the rule were now res integra, perhaps the necessity of the case, arising from the situation of our country, and the want of self-evident termini of our lands, would require its adoption.” There is a strong array of American authority which seems to support the common-law rule. But the courts of a majority of the States, it is believed, hold the same doctrine asserted in the cases I have cited from North and South Carolina. The 2d assignment charges error in the ruling of the court excluding the documents imbodied in bill of exceptions No. 2 when offered in evidence.

These documents were sought to be introduced with a view to contradict and discredit the testimony of the witness McCoy. We do not think that they would necessarily have had that effect if they had been admitted. It is unnecessary to discuss the question whether, considering the object in offering these papers, it would have been error if they had been excluded on the ground of irrelevancy, as it is clear that they were correctly excluded on the ground that they were not authenticated or proved in any mode which entitled them to be read as evidence.

The death of the parties by whom, and the officers before whom, these papers purport to have been made, was proved. Upon this predicate they were offered as evidence. No effort was made to prove the handwriting to be that of either of the officers or either of the parties concerned in making them. The record is silent as to the custody whence they came. It is not pretended that they are either originals or copies of any .public record. In a word, these papers were thrust forward unsupported by proof of a single circumstance corroborative of their genuineness or antiquity.

The same reasons which sustain the propriety, of the ruling of the court excluding the documents described in bill of exceptions No. 1 apply with increased force against the papers in question, and fully vindicate the action of the court in rejecting them. It does seem that if the papers described in the two bills of exception which we have been considering are genuine, some evidence of it could be adduced.

Evidence of the making or execution of papers of the age that these seem to be, where the custody from which they are produced is that from which such papers might naturally and reasonably be expected to come, and when they are accompanied by circumstances consistent with their fairness and genuineness, and there is nothing to excite suspicion against them, is not expected to be so direct and full as would otherwise be required. The law in such cases is indulgent, and does not demand that complete measure of proof which is required in more recent transactions.

Evidence, for instance, in regard to the proof of handwriting, which is not admissible under the rules in respect to recent transactions, but which is persuasive of the genuineness and authenticity of the document, is freely admitted where the instrument is aged. (Coulson v. Walton, 9 Pet., 70; Bennet v.

Runyon, 4 Dana, 422; 4 Phil. on Ev., 371, notes.) The fact that no evidence of this character, which may be reasonably presumed by proper diligence to be accessible, was attempted to be adduced in favor of the writings in question, and that no account is given of the custody of those mentioned in bill of exceptions No. 2, is a strong circumstance against them, which, unexplained, precludes presumptions which might otherwise have been indulged in their favor.

We will in this connection, because governed by the principles we are now discussing, consider, though out of its order, the ruling of the court rejecting the testimony of the witness Copps, which is assigned as error. This witness was asked by the appellees on the trial, “ Whether or not the location of the Powell league, as represented on the map, had been uniformly and generally respected and accredited as the true location by the community around it?” This question was objected to by the appellees, and the objection sustained by the court, and we think properly.

The rule that old boundaries may be proved by the common reputation and understanding of the neighborhood, where the land lies, would seem better established, and to stand in principle on higher ground than the one we have been considering, which admits the declarations of deceased persons of competent knowledge and having no interest, as evidence. (Tate v. Southard, 1 Hawks, 45; Taylor v. Shufford, 4 Id., 116; Lessee of McCoy v. Galloway, 3 Ham., 282; Boardman et al. v.

Lessees of Ford et al., 6 Pet., 341.) The admission of evidence of common reputation as to old boundaries, which frequently cannot possibly be proved by direct and positive testimony, is based on the extreme probability of the truth of a fact received, assented to, and acted on as true by the common consent of a community having peculiar means for correct information, and no interest to warp their judgment in forming a conclusion.

In the absence of direct and positive testimony which, when they are ancient, cannot usually be had to establish boundaries, common reputation is perhaps as little liable to error as any other species of evidence that can be resorted to for the purpose, and, indeed, is frequently the only resort. The general rule is undoubted, that common reputation is admissible as evidence in questions of boundary, but there is much diversity of opinion as to its proper application. (Boardman et al. v.

Lessees of Ford et al., 6 Pet., 341.) The unrestricted admission of this species of evidence would be fraught with the most dangerous tendencies, and violative of the best dictates of experience. The admissibility, as well as the value and weight, of general reputation must, from its nature, depend very much upon the circumstances of the case in which it is offered. It cannot, of course, be received as to title. It is admissible only as to the locus in quo of the boundary, a fact of which the community or neighborhood around it is supposed to be peculiarly well informed.

The boundary must be an ancient 'one, and its supposed locality must be of sufficient interest and note in the neighborhood or community to have been the subject of observation and conversation among the people. The reputation or understanding must be general and concurrent. There, weight of opinion or neighborhood report is not common reputation. The reputation or understanding must, have been formed and in existence before the controversy commenced in which it is used as evidence.

Men are not presumed to be indifferent in regard to matters in actual controversy, for when the contest has begun, people generally take one side or the other, and, if they are disposed to speak the truth, facts are or may be seen by them through a false medium. Greenl. on Ev., § 131, note.) For this reason, it is necessary that proof of common reputation must have reference toh, time ante litem motam. The question propounded to the witness, Copps, is general, and not limited even to the filing of the suit. It is not limited to any particular time.

It is further objectionable, because it seems directed .more towards proving the correctness of the map than the locality of the boundaries of the survey on the ground. The court ruled upon the question as propounded, and the ruling is correct. Here-say evidence is generally inadmissible. Desiring to introduce evidence under an exception to that general rule, it devolved upon the appellant to bring himself within the limits of the exception, which he failed to do.

The 3d assignment of error brings in question the ruling of the court admitting certain patents in evidence over the objection of the- appellant, being introduced, as is shown by the bill of exceptions, “ for the purpose of showing a change of the mapped location of the Powell league by the officers of the general land office.” These patents appear from the evidence to cover land formerly shown hy the land-office map to he covered by the Powell title.

They appear to have been introduced simply in rebuttal of the presumptions arising in favor of the appellant from a sketch from the land-office map introduced in evidence by him, which showed the location of the-Powell league to be as claimed by him. We do not perceive any error in their admission for this purpose. If the appellant were entitled to presumptions arising from an introduction of the map, the appellees were entitled to repel that presumption by showing that the officers of the government regarded the map as incorrect.

The first question arising under the 4th assignment of error is upon the "refusal of the court to instruct the jury, at the request of appellant, as follows: “1. The plaintiff in this suit, under the pleadings, is not bound to show that the defendants are on the land; the burden of proof is on the defendants, to show that they are not on the land claimed by the plaintiff.” There was no error in the refusal of the court to give this instruction. It is a proposition that cannot be disputed, that a naked possessor of land is entitled to hold it until a perfect title is proved against him.

The claimant or plaintiff must prove the title under which he claims, and must also prove that the land described in his petition is the same possessed by the defendant, unless he is relieved by the pleading or admission of the defendant from so doing. Such is the common-law rule in actions of ejectment. (Adams on Eject., § 277; Greaves v. Ruby, 2 B. & A., 948; Pope v. Pendergrast, 1 Marsh., 122.) In this case the defendant, plead “ not guilty,” and the 5th

section of the act of February 2, 1844, (O. & W. Dig., Art. 2051,) provides that they shall not be required to put in any other plea. By this plea they admit nothing, but demand strict proof of everything necessary to sustain the plaintiff’s action.

If this plea be construed to admit the identity of the land in their possession with that claimed and described in plaintiff’s .petition, and only to put in issue the title, (the idea on which this instruction is predicated,) it would, in effect, be to require the defendants, in order to avail themselves of the full measure of the defense relied on, to plead it specially, in express contravention of the statute, which provides that they shall not be “required to put in any other plea than the one of not guilty.” The 6th

section of the act of 1840, (O. & W. Dig., Art. 2042,) which provides that it shall not be necessary to prove an actual trespass on the part of the defendant in order to maintain actions of this character, is cited by appellant’s counsel as establishing the propriety of this instruction, and the error of the court in refusing it. We are of the opinion that it does not have this effect. By the act of 1840, the common-law action of ejectment, with its fictions, was abolished, and the present form of action of trespass to try title was instituted. It was designed as a simple and direct mode of litigating and quieting titles to lands which in almost every

section of the country were conflicting and unsettled. Nine-tenths of the appropriated lands of the country were unoccupied, and in a majority of instances the claimants resided at a distance from them, and in many instances had never seen them. Ho actual trespass could be proved, because in many instances no actual entry had been made.

It became necessary, in order to adapt this remedy to the necessities of the country, to enable parties who desired its benefits to avail themselves of it without the necessity of proving actual trespass, and for this purpose the clause of the statute under consideration was enacted. Its intention was simply to give an unobstructed remedy, by dispensing with a mere formality, not involving any right of the defendant.

It was not the intention, nor is it the effect, of this clause of the statute to shift the burden of proof, nor in any way to change or interfere with the general principles of law governing the rights of parties. We are of opinion, that the plea of “not guilty,” in actions of trespass to try title, gqes directly to the points in dispute under the evidence, and throws upon the plaintiff the burden of proving everything in relation to these points that is necessary to maintain his suit and entitle him to recover.

The issues under this plea are in effect made by the evidence, and if any fact is found controverted there which is necessary to entitle the plaintiff to recover, the burden is on him to prove it. In this case, the evidence shows that the plaintiff claims land which is in possession of the defendants. They deny that this is the same land described in plaintiff’s petition. The burden lies on the plaintiff to identify the land by proof. (Rivers v. Foote, 11 Tex., 662; Dally v. Booth, 16 Id., 565; Ayres v.

Duprey, Galveston term, 24th March, 1864,) [27 Tex., 593.] It is not deemed necessary to discuss the various questions presented by the other instructions asked by the appellant, and refused by the court on the trial of this case, which are raised under this assignment, of error, nor to decide whether, as abstract propositions, they are law.

What are boundaries, and how they may be established or identified, and the rules that shall govern in ascertaining and deciding as to their locality, has been discussed so repeatedly in this court, and so well settled in its adjudications, that it would be a useless and unprofitable consumption of time to travel over the same ground again, only to reach conclusions with which we are already satisfied.

It is only necessary to say, that so far as the charges requested by the appellant were proper to be given, they were substantially imbodied in the able and lucid exposition of the law of the case given by his honor the district judge in his instructions to the jury. These instructions, we think, presented the law, as established and settled by the adjudications of this court and applicable to the facts of this case, fully and fairly to the jury. We are of opinion that there was no error in refusing the charges asked, and that there was no error in the charges given. (Hubert v. Bartlett, 9 Tex., 97; George v.

Thomas, 16 Id., 74; Bolton v. Lann, Id., 96; Mitchell v. Burdett, 22 Id., 633; Booth v. Upshur, Austin term, 1861,) [26 Id., 64.] The question of the sufficiency of the evidence to support the verdict, arising under the 5th and last assignments of error, only remains to be considered. We have felt some embarrassment in arriving at a conclusion on this point.

We are inclined to the opinion, while the testimony as to the true locality of the land (which is really the only point in controversy in the case) is very nearly evenly balanced, that it preponderates in favor of the locality as claimed by the appellant, and consequently against the verdict of the jury. Pierson, who is a practical surveyor, was the chief witness on behalf of the appellant, and Hunnicutt, also a practical surveyor, was the leading witness on behalf of the appellees. Each one of these witnesses made efforts by actual survey to define the locality of the Powell league.

Pierson’s survey locates the land on the ground where the county and land-office maps originally showed it to be, between the Harrell and the Welch leagues, with the J. W. Carpenter league on its south boundary line. Hunnicutt’s survey, according to the diagram accompanying his testimony, so defines it as to put it in conflict with" the Welch league on the east, and some other surveys, not named, on the south, leaving the appellees, who, according to Pierson’s survey, are on the land claimed by the appellant, outside of its lines.

While both these surveys are exceedingly indefinite and unsatisfactory, we think, perhaps, that made by Pierson is better sustained by other circumstances in proof than the Hunnicutt survey It accords with the mapped location of the land made at a time when the evidences of its locality were necessarily more apparent than now. The surrounding surveys call for the Powell league on the ground where Pierson’s survey places it.

It is proved by both Hunnicutt and Pierson ttiat there is about the area of one league of land between the Harrell and Welch leagues, between which two the Powell league is represented on the map, and was originally supposed to lie. There is testimony in the record which shows that it may be possible that the survey, alleged by Hunnicutt to be the Powell league, may be an old survey, which was made in 1835 for a party who rejected it; this is shown by the testimony of the witnesses, Anglin and Bates.

But, on the other hand, the testimony of Hunnicutt is corroborated by the direct and positive testimony of the witness McCoy, who was one of the surveying party who made the survey of the Powell league in 1835; who says that the boundaries found by Hunnicutt, and claimed by him to be the boundaries of the Powell league, are the true boundaries of that league as originally surveyed. The testimony of this witness is assailed by the appellant, on grounds which, though not devoid of plausibility, are not inconsistent with the integrity or correctness of his testimony.

An impression, however, is left upon our minds, from the whole testimony, of a possibility, that this witness may have been mistaken, after the lapse of so many years, in his identification of the survey in a country which the testimony shows has changed considerably in appearance by the growth of brush and timber. This impression is not a little strengthened by the “ willow-limb story, which shows that his memory is not to be implicitly relied on.

His testimony, however, is positive, and is somewhat corroborated by that of the witness, Bates, in regard to the pointing of the hacks or marks on the north line of the Powell league.

While we are of opinion that the jury found against the weight of the evidence, and that a verdict for the plaintiff would have been more in accordance with the facts and the immemorial policy of the law, which discountenances the disturbance of the peace of communities and the rights of individuals by unsettling landmarks and boundaries that have been so long established and acquiesced in, we cannot say that there is not evidence to support the verdict. There is great conflict in the testimony. The jury had all the facts before them.

From having seen the witnesses, and heard their testimony, and observed their manner of testifying, they were in a much better position to judge of the weight and degree of credit to be attached to their statements than we could possibly be by an inspection of the record. » The jury are the exclusive judges of the weight and credibility of testimony, and especially is this the case.where the testimony is conflicting. Under such circumstances it is well settled in the adjudications of this court, that a verdict will not be disturbed because the jury may have erred.

In order to justify this court in setting aside such a verdict, it is not sufficient that it does not appear clearly to be right; it must appear to be clearly wrong. And we are not prepared to say that the verdict in this case is clearly wrong. (Ables v. Donley, 8 Tex., 331; Stewart v. Hamilton, 19 Id., 101; Damage v. Trawick, 19 Id., 58.) We, feel the less hesitancy in affirming this judgment from the fact that the rights of the appellant are not concluded by it.

He has the right, under the statute, to another adjudication upon the subject-matter of this suit, if he choose to avail himself of it, by instituting another suit within twelve months. There is no error in the judgment, and it is Affirmed.