C. E. Jamison et al. v. H. H. Dooley et al., 98 Tex. 206

GAINES, Chief Justice. The plaintiffs brought this suit to recover of defendants a tract of 640 acres of land in Haskell County which was patented to John Jamison, January 8, 1859, by virtue of an unconditional certificate for that quantity issued to him by the Board of Land Commissioners of Sabine County on the 6th day of May, 1844. J. C. Baldwin and A. C. Scott were permitted to intervene and claimed title to one-half of the land by virtue of a grant from the plaintiffs. Their claim was not contested by the plaintiffs.

The defendants pleaded not guilty and also the statutes of limitation of three years and five years. The case was tried without a jury and resulted in a judgment for defendants for an undivided two-thirds of the land, and for the plaintiffs and interveners for the other third. That is to say, the plaintiffs had judgment for one-sixth and the interveners recovered one-sixth. Both the plaintiffs and the interveners appealed, but in the Court of Civil Appeals the judgment was in all things affirmed.

The plaintiffs asserted title as the heirs of one John Jamison, to whom they claimed that the certificate and patent were issued.' The defendants asserted title to two-thirds of the land, under a sale by the administrator of the estate of one Maria Jamison, deceased. Their claim was that the John Jamison to whom the land was granted was the grandfather of the John Jamison under whom the plaintiffs assert title, and that Maria was his daughter. During the course of the trial H. H. Dooley, one of the defendants, was permitted to testify: "I was intimately acquainted with Maria Jamison, Allen Jamison, J.

Nelson Jamison, commonly called Nelson, and Baker Jamison and John T. Fowler. They all lived together. Baker Jamison was about seven years older than I was, and I often visited their house. Baker and I were in the same fire company. Nelson and I were in the war together; he died during the war in Houston. Allen died about the close of the war. Baker Jamison died a short time before Maria Jamison died. Maria Jamison died in 1867. Maria Jamison, Allen Jamison, and J. Nelson Jamison were brothers and sisters. Baker Jamison was the son of Maria Jamison, and John T. Fowler was her grandson.

Maria Jamison was a widow when I first knew her and never married; neither Nelson nor Allen wére ever married. Maria told me at her house, in the presence of J. Nelson Jamison, Allen Jamison and Baker Jamison, that Allen Jamison came from Kentucky to Texas in 1839, and that she with her son Baker and a daughter who married Fowler, and J. Nelson and her father John Jamison came to Texas in 1840 together. They first settled in Nacogdoches County, Texas, and afterwards lived in Sabine County, Texas.

Maria told me th'at she and her husband had separated before coming to Texas, and that he had gone south and died in northern Louisiana. She said she had no brothers or sisters except Allen and Nelson Jami-son, and that they were her brothers. She told me that her father, John Jamison, died in Sabine County, Texas, about a year before they moved to Houston, and that he was buried near Milam, in Sabine County, Texas, and that her daughter also died and was buried there. J. Nelson, Allen and Baker Jamison and J. F. Fowler also stated to him the same facts stated to him by Maria Jamison.

Maria told me that her father John Jamison, Allen, J. Nelson and herself all got certificates for land. She said that she received the John Jamison certificate from her father and that she employed a Mr.

Mitchell to locate it, agreeing to give him a one-third of the land to locate it; that after the land was located she paid Mitchell in money for locating it, instead of giving him one-third of the land, and Mitchell turned the patent over to her/’ The plaintiffs excepted to' the testimony as to the declarations testified to by Dooley and took two bills of exceptions: one as to the declarations of Maria Jamison, Allen Jamison and J. Nelson Jamison, and another as to the declarations of Baker Jamison and Fowler..

The bills, however, merely showed that the evidence was objected to and the grounds of objection, and that the objections were overruled by the court. They did not show that the evidence was admitted. The Court of Civil Appeals ruled that because it did not appear by the bills of exception the testimony objected to was in fact introduced, the bills could not be considered. If the testimony did not appear in the statement of facts, we are inclined to think the ruling would have been correct.

But since the statement of facts shows clearly that the very evidence objected to was introduced upon the trial, we are of opinion that the bill is sufficient to demand a consideration of the questions presented by it.

The purpose of the statement of facts, which was unknown to the practice at common law, and which was introduced into our system by statute, is to make the evidence introduced upon the trial a part of the record in the case; and in a number of cases in this court it has been looked to and considered in connection with the bills of exception, and the bills have frequently been construed in the light of the evidence disclosed by the statement of facts. Heffron v. Pollard, 73 Texas, 96; Wiseman v. Baylor, 69 Texas, 63; Ramsey v. Hurley, 72 Texas, 237; McClelland v. Fallon, 74 Texas, 236.

We incline to think the declarations of Maria Jamison, Allen Jami-son and J. Nelson Jamison should have been excluded. The declarations were self-serving as to them. If their declarations were true they had an interest in the land. But it appears that Baker Jamison and Fowler had no such interest. It was shown that Baker Jamison died before his mother, Maria. It does not appear when the declarations of Fowler were made,—if after the death of his grandmother, Maria Jamison, it was not proved.

According to Dooley’s testimony the statements made by the two last named witnesses were -the same as those made by the three former. Therefore we think that under the evidence in this case the plaintiffs were not prejudiced by the admission of so much of the testimony as ought to have been excluded.

The case having been tried by the judge without a jury, we see no good reason to doubt that his finding upon the facts would have been the same had the statements of the interested declarants been excluded. ■The declarations of Baker Jamison and of Fowler in reference to the certificate should have been excluded upon proper objection. But their declarations were objected to as a whole, and the rule in such cases is that if a part be admissible, the objection should be overruled. The testimony that was properly admitted is amply sufficient to sustain the court’s findings of fact.

The other assignments of error in the Court of Civil Appeals were correctly disposed of by that court. For the reasons given we think the judgment should be affirmed, and it is accordingly so ordered. Affirmed.