J. N. Brown et al. v. Jesus Perez, 79 Tex. 157

HOBBY, Judge. The appellee, who was plaintiff in the lower court, sued the appellants, defendants below, in November, 1886, to recover a league and labor of land patented to the heirs of Diego Perez, in Atascosa County. There is no controversy as to the fact that the plaintiff is the sole heir of Diego Perez. So too it is admitted that the defendants have a regular chain of title from one A. Superville. The question then upon which this case turns is whether the plaintiff conveyed the land in controversy to A. Superville.

The defendants claim that he executed such a conveyance in March, 1854, and read in evidence a certified copy of a deed from Jose de Jesus Perez to said Superville. It was filed in this suit March 37, 1888, after proper affidavit of loss was made and notice of filing given. It purported to have been executed by “Anselmo de” Jesus Perez, and was signed by Jose de Jesus Perez with a cross. It was witnessed by Este van de la Garza and Bamon Garcia, and proved for registration by the latter before S. S.

Smith, clerk of the County Court of Bexar County, on the 38th day of June, 1854, filed for record, and recorded on the same day. An affidavit was filed by plaintiff on March 39, 1888, attacking this deed as a forgery, referring to the instrument filed by defendants in this • suit on March 37, 1888, and purporting to be a deed from C. Jose de Perez to A. Superville, executed March 33,1854. The affidavit was subscribed and sworn to by plaintiff on March 31, 1888.

The plaintiff offered testimony in support of this affidavit, and the defendants introduced evidence to establish the execution of the assailed instrument, and the issue thus made was submitted to the jury. The verdict was in favor of plaintiff. The defendants appeal, and the first and second assignments are in effect that the court erred in its charge recognizing the affidavit as being sufficient to raise the issue as to the execution of the deed, because it was made on March 21, 1888, and referred to a paper filed March 27, 1888, and described a deed from C. Jose de Jesus Perez to A.

Superville, while the paper filed by defendants was a certified copy of a deed from Anselmo de Jesus Perez. The effect of these assignments is to raise for the first time in this court objections to and point out defects in an affidavit of forgery which was not excepted to on any ground during the trial. If the affidavit was in any respect defective, as claimed, it was treated by the parties and the court as perfect. It was recognized as properly raising the issue as to the execution of the conveyance from plaintiff to A. Superville, under whom the defendants claimed.

If performed fully the functions of an affidavit in all respects complete and made for this purpose; and it would certainly be too late to raise now for the first time objections to it based on supposed defects which, if pointed out and made on the trial, it is to be presumed would have been cured if they really existed. We do not think the assignments attacking the affidavit are well taken. The seventh assignment presents the question of the sufficiency of the evidence to support the verdict.

The certified copy showed that the deed to Superville had been recorded in the proper county for more than thirty years before the trial. Title to this land had been asserted under conveyances as follows: A. Superville conveyed to G. Theisen May 17,1854, by deed, which was also properly recorded in June, 1854. Theisen located the certificate and conveyed a locative interest of one-third to J. J. Giddings, who conveyed to J. W. Giddings, who also conveyed to M. Giddings. The heirs of M. Giddings conveyed to appellant Brown in 1856. Each of these conveyances was properly recorded.

The remaining two-thirds of the land was conveyed to defendants Adams 'and Wickes in 1872. The defendants entered into a partition of this land in March, 1884. ISTo taxes had been paid on the land by appellee. Appellants had paid taxes thereon for several years, and defendant Brown had at one time leased the land. . One of the subscribing witnesses, Estevan de la Garza, testified that he knew the plaintiff and A. Superville, and narrated the circumstances in detail under which the plaintiff, Jesus Perez, executed the deed of the former.

He was present and was called on to witness the signature of the plaintiff, which was made with the mark of the cross. He related also that Ramon Garcia, who is now dead, was a subscribing witness. The last named witness, it was shown by the certified copy in evidence, appeai’eá before the county clerk of Bexar County on the 28th day of June, 1854, and proved the instrument for registration. Adopted December 19, 1890. Another witness, P. L. Buquor, testified on the trial that he knew the plaintiff and A.

Superville well; was present at the sale of the land certificate to the latter by the former and the execution of the deed therefor. This witness stated what consideration was paid to plaintiff by Superville, and more minutely than the witness De la Garza testified to the circumstances attending its execution. There was proof that when “Jose de” is “prefixed to a name among Mexicans at baptism it is generally afterwards dropped,” but that ’it was a custom among the old Mexicans to add the prefix “Jose de” in writing their names.

The plaintiff alleged that the baptismal prefix of “Anselmo de” to his name had been by him dropped and abandoned. The plaintiff introduced several deeds executed by him to A. Superville conveying other lands. The execution of one of these was witnessed by Ramon Garcia and Jose de la Bonne, and another by Ramon Garcia and Margareto Flores. But the instrument in question was the only conveyance the execution of which was witnessed by Estevan de la Garza and Ramon Garcia. The evidence contradicting the foregoing or in support of the affidavit attacking the deed is that of the plaintiff himself.

He stated that he did not execute the instrument to Superville under which defendants claim; that he never signed any deed in the presence of Estevan de la Garza or Ramon Garcia or P. L. Boquor; and furthermore he testified that he did not know one Jose de la Bonne or Margareto Flores, and they were not present when he executed any conveyance to Superville. But it appears from the deed which the plaintiff admits he made to Superville that he did sign it in the presence of Ramon Garcia and J. L. Buquor as witnesses.

It also is shown by another conveyance which the plaintiff concedes he executed to Superville that it was signed by Mm in the presence of Margereto Flores and Ramon Garcia, who subscribed their names as witnesses thereto. In this case the evidence for the defendant is direct and positive as to the execution of the deed; and this is corroborated by a number of consistent facts and circumstances testified to by witnesses wholly disinterested, apparently. On the other hand there is a manifest conflict in the plaintiffs own testimony in important particulars above noticed.

Under this state of the proof we do not think the verdict can be said to be sufficiently and satisfactorily supported by the evidence, but that it is contrary thereto and not sustained by it. We think that the judgment should be reversed and the cause remanded. Reversed and remanded.