The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-28

names and residences of the parties
and witnesses. The names of per-
SONS and towns should not be written
| with ther initials alone, nor should
any alterations or ciphers, that in
substantial things may produce OBJ
security, equivOcatiOn, or contention
| and that quantities and dates be eX-
pressed in letters, and not in numbers
and figures under penalty of nulity of
| the instrument, and upon the reSpon-
sibility of the notary public for any
damage and injury that by his act
may accrue to the parties" Eschriche
Dici Leg. PIP. $685.
We have not overlooked the
| fact that the field notes con-
/ tanned i'll the title to Rafael de
Aguirre for the lands on the Gabriel
and Cow Bayou purport to have been
made by the surveyor +. w. johnson.
and from his deposition found in the
statement of facts it appears that in
| 1888 he made a survey of the land in
question for one Williamson (Wil-
liams?). But the answers of the wit
ness, however important to either
| party, are copied into the transcript
without the interrogatories neceSSa-
ry to make them Ineligible. The
survey made by him and incorporated
into the grant by Rafael de Aguirre
are without dates. The testimony
or duplicate original of the final title
to Rafael de Aguirre. which ought
regularly to have been issued and
delivered to the grantee or his
attorney on the extension of the
title, is not produced or accounted for
Upon a review of all the evidence
submitted by both parties to the jury
on the issue of forgery, we are not
able to say either chat their verdict
was without evidence to support it,
or that it was SO manifestly against
the weight Of the evidence as to au-
thoriZe this court under it's well
settled rules to set it aside. The APP
pellant assigns as error the charge of
the court submitting to the jury the
issue whether or not the original title
from the government to Rafael de
Aguirre, dated October %, 1883, was a
forgery. The court charged the jury
in effect that the grant to Rafael de
Aguirre, under which the plaintiff
claimed, was on it's face regular
and sufficient to vest title in the
grantee, and that the plaintiff was en-
titled to recover unless they should
find from the evidence that the origi-
nal title was a forgery; and charges
asked 10y plaintiff, presenting at
greater length his claim Of title and
asserting its suf1iciency to entitle him
to recover were modified by the court
by adding UNLESS you find from the
evidence that the final title was
forged" The court also submitted to
the jury Il special issue as to whether
said original title was in fact forged
all of which is complained of by
the appellant; and in support of his
views he urges the authority of Han
rick VS.. jackson, supra. 1t was held
in Hanrick VS.. Jackson that the de-
PENDANT claiming under d junior grant
and showing no equity existing prior
to the issuance of the title to Rafael
de Aguirre could not successfully i'm
peach the grant for fraud or irregu-
larity in its issuance, from which it is
argued that in this case the defendant,
who also claims Il junior right I'M
connected with any antecedent equi-
ty, ought not to be permitted to ques-
ton the grant on the ground Of for
gerry. But if the grant is forgery,
if it was in fact never issued by the
officer by whom it purports
to have been issued, or if by subse-
sequent alterations it has been made
apparently to confer rights not con-
ferred by it at the time it was issued,
then it is not voidable only, it is abso-
lutely void, and IS subject to attack
by any one agains whom it is sought
to be used. We find no error, there
fore in the submission to the jury
upon the issues raised in this case of
the question of the genuineness of
the title under which the plaintiff |
claimed, and denying him the right to
recover in case the jury should find it
to be forgery.
1t is insisted that the court erred in
admitting in evidence, and afterwards
in refusing to withdraw from the
consideration of the jury, the several
instruments already referred to, tend
ing to show that Rafael de Aguirre
had previously received perfect |
to eleven leagues on the BraZos, based
on the same application and conces-
sion on which the grant in contro-
verSy purportS to be based; that other
grants issued about the same time
and with which Williams was also |
connected, recognized the survey
made for Aguirre on the BraZos; that |
PerfecJo Valdez had taken the pre-
liminary steps which would have au-
thoriZed the extension to him of a
final title, such as that under which |
the plaintiff claims appears to have |
been before its mutilation, together
with the maps and sketches from the |
general land Office showing the loca-
tion of the first eleven leagues grant
ed to Rafael de Aguirre on the Bra
EOS, with corrected surveys, and of
the Perfecto Valdez survey, also on
the Brazos. with its connected sur
veys, and the certified copies made in
1888 and 1866 of the final title to Ra-
fael de Aguirre for the lands on the
Gabriel and Cow bayou. The obiec-
ton to the evidence was because of
its supposed irrelevancy. We think,
however, that on the issue of forgery
made by the affidavit. which must be
sustained, if at all, upon circumstan-
tial testimony, the evidence offered,
though some of it was remote and
entitled to but little weight, was
proper to go to the jury and to be
considered by them in cOnnec-
ton with all the other facts and
circumstances bearing on the issue.
The admission of the land office copies
of the chain of title from Perfecto
Valdez to Mrs. McManuS was espe-
cially objected to on the further
ground that no final title having is
sued, they were not properly archives
of the land office; but we think they
were properly admitted under the pro-
visions of the r. S. 1858, 2259 and 3808.
Such assignments and transfers are
under the provisions of the revised
statutes made archives of the land
office, and are not subject to be with
drawn by the parties at interest, and
the rule and the reasoning in Short
VS.. Wade, % Tex, $40, no longer APP
ply. 1t is further to be observed that
the error, if any, in the admission of
the certified copies would have been
rendered immaterial by the subse-
quent introduction of the original in
struments themselves, which. coming
from proper custody, to wit, the land
Office, and being more than thirty
years old, were properly admitted
without other proof of their eXecu-
ton.
The appellant assigns as error, the
refusal of the court to admit in evil
dence the correspondence had in 1910
between j. p. Borden, then commits
sioner of the general land office, and
James Hewlett, county surveyor of
| the district embracing the eleven
leagues on the Brazos, granted to Ra-
fael de Aguirre on the 4th of October,
1888 and relating to that survey, the