A. B. Gaither v. E. G. Hanrick, 69 Tex. 92

Maltbie, Judge. The plaintiff offered in evidence the translated copy of the title to Rafael De Aguirre to the land in controversy. On the first leaf o,r page of said certified copy there appear the following words and figures: “Title in favor of Rafael de Aguirre for 11 leagues of land, 10 of which are situated on San Jani C. and Williamson’s creeks, and one league on Cow bayou, west side of Brazos, issued by T. Lessessier, alcalde of San Felipe, October 22, 1829.” Written in pencil: “This is the genuine title to Rafael de Aguirre— the name Perfecto Valdez inserted through mistake. J. P.

B.” Also in pencil. “See Mr. Borden’s letters, file 3636.

Refer to title to Rafael de Aguirre on west of Brazos, ¡Note 1.” The above is a true copy of the memoranda attached to the title, which was objected to on the ground that the page or leaf was no part of the title issued by the officers of the government, but a memoranda made by some person unknown, at an indefinite time, expressing the opinion or conclusion of such person upon the issue now being litigated — that is, as to whether the Aguirre title is genuine, and because the Commissioner could not validate the title, if a forgery, by an order or ruling, and said evidence was calculated to mislead the jury — which objections were overruled, and the point saved, and is now assigned as error.

The evidence objected to was the declaration of some unknown person, expressing an opinion as to the validity of the Aguirre grant, and in the nature of hearsay testimony; being read in connection with and as a part of the title, was calculated to influence the jury in determining whether the Aguirre grant was genuine or a forgery and was clearly inadmissible. A very similar question was considered in the case of Hanrick v. Cavanaugh, 60 Texas, 24. This ruling is attempted to be sustained under articles 2252, 2253, Revised Statutes.

On the ground that the Commissioner of the General Land Office is authorized to certify to a copy of any document or record in his office, and also to certify to any fact contained in the records of his office. But said articles provide that the facts certified by the Commissioner shall be in evidence in all cases in which the originals would be; thus evincing no intention to extend the rules of evidence, so as to make evidence admissible that was before inadmissible under the rules of the common law.

The statute providing the means of authenticating copies of documents in all cases when it was not for any reason proper or convenient to take the original out of the office; and also for authenticating copies of any indorsement in any book or file upon a paper, or any like fact, pertaining to a document or record in such office.

The plaintiff then offered in evidence a certificate of the Commissioner of the General Land Office, to the effect, that the eleven leagues represented on the map of McLennan county as having been titled to Rafael de Aguirre, October 4, 1833, had been located over an adverse location patented by virtue of valid certificates.

This was objected to, substantially on the ground, that the certificate was not competent evidence of the facts sought to be proved, and was not the best evidence, and because the Land Commissioner, by permitting locations of valid certificates to be made on the eleven league grant in McLennan county, could not invalidate the old title thereto, if otherwise valid, and because it was calculated to mislead and confuse the jury. These objections being overruled defendant excepted, and has assigned the ruling of the court as error. We are of opinion that the evidence should have been excluded. (Rev.

Stat., art. 2253; Buford v. Bostick, 50 Texas, 375; R. R. Co. v. McGehee, 49 Texas, 489; Hanrick v. Cavanaugh, 60 Texas, 24; Hanrick v. Dodd, 62 Texas, 90.) It is next insisted that the court erred in refusing to permit defendant to prove that there were other joint owners to the land beside the plaintiff. The petition alleged that E. G. Hannick was the sole owner in fee of the land in question.

Section 3,

article 4786, Revised Statutes, requires that the petition shall state the interest claimed by the plaintiff in ■'he premises; and if he claims an undivided interest, he shall state the sum and the amount thereof.

The plaintiff had fully complied with the statute, in setting forth his title; and the court did not err in refusing to permit the defendant to prove that there were other joint owners of the land beside the plaintiff, defendant not offering to connect himself with such title; if there were other joint owners, plaintiff would have been entitled to recover their interest as against a stranger. (Pilcher v.

Kirk, 55 Texas, 208, and authorities cited.) The fifth and last assignment which will be considered, is, that the court erred in refusing to allow defendant, under the pleadings in this case, to show that ho was a possessor in good faith and the value of his improvements. It appeared that defendant bought out E. M.

Breuer; that Breuer possessed all of the qualifications, and had taken the necessary steps to entitle him to pre-empt the land if it had been vacant public domain and that defendant possessed the same qualifications, and had purchased Breuer’s interest and was in possession, claiming as a pre-emptionist. The defendant’s plea for valuable improvements in good faith was sufficient unless invalidated by the following averments: “ Defendant says that he was informed and did believe that said land was vacant public domain, subject to pre-emption.

That he knew it was claimed and held by plaintiff under the Aguirre grant, but that he believed that said grant was a forgery; that the district court had so held in the case of Hanrick v. Cavanaugh, and that the judgment had been affirmed by the Supreme Court.” Under this state of facts, defendant offered to prove all of the material allegations of his answer in support of his plea, but the same was excluded upon objection of plaintiff. Was the defendant in a condition under the facts and pleading to make good his claim for valuable improvements on the land?

If the defendant had good reason to believe the land to be vacant, and settled u])on it, with intent to acquire a title by pre-emption, he would be entitled to the value of his improvements made while he was thus an occupant, so believing, unless there was some fact connected with the settlement that would prevent the occupant from being a settler in good faith. (Thompson v. Comstock, 59 Texas, 319; Sellman v. Lee, 55 Texas, 322.) One may be a possessor in good faith, who knew of the title of another, if he has reasonable and strong grounds to believe in the soundness of his own title. (Sartain v.

Hamilton, 12 Texas, 222.) As a general rule, to constitute one a possessor in good faith, he must not only believe that he is the true owner, and have reasonable grounds for the belief, but he must be ignorant that his title is contested by one having a better right. But there may be cases when, though aware of an adverse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foundation; and so be in possession in good faith. (Dorn v.

Dunham, 24 Texas, 380.) In the Institutes of Asso & Manuel, good faith is said to consist in the possessor’s believing that the person from whom he received a thing had a right to transfer it.

The defendant in. this case knew of the claim of the plaintiff, but he also knew that the title had been declared by the district court of Williamson county to be a forgery, and that the judgment had been affirmed by the Supreme Court; and we are of opinion that these judgments of the district and Supreme Court would, to the mind of the ordinary citizen, be reasonable and strong grounds to believe that the plaintiff’s title was invalid, ■and, as a consequence, the State would have the right to transfer the title to him, and think that the evidence should have been admitted.

It is contended by appellee that the undisputed evidence shows that appellant entered upon the land in subordination to the right of appellee, and is estopped to dispute his title. A sufficient reply is that the issue was not made and submitted to the consideration of the jury in the court below; and it affirmatively appears from the pleading and evidence that the jury in no event would have been called upon to determine this question unless appellee’s title had have been found to be a forgery.

We know of no rule of law that would authorize the court, when there has been a jury trial, and material errors committed, to affirm a judgment when issues of fact that the parties have not submitted to the jury on such trial. Our conclusion is that the judgment should be reversed and the cause remanded. Reversed and remanded. Opinion adopted November 22, 1887. Chief Justice Willie did not sit in this case.