Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-06-18

propertv In so far as owned by the per
SON making the conveyance. IL has long
heeu customary 10 use the words al
tlm right title and interest In aud To-
land described In d deed. and when such
words are used without other words
limiting their effect, they must be held
10 convey the land AS fully Us was u
oW ned by the maker Of the deed. What
ever he owns passes. The same rule
applies To sherin's snlcs, unless there be
some rule of law making them eNeep-
tons In Blum vs.. Smith, II. Is. Mum
roc, 3li2. the idea that such sales are
exceptions to the rule Land down above
was disapproved This was followed in
Villas vs. Reynolds. g Wis, 30, and
Mlllctt vs.. Blake. 81 Maine, DBL. The
rule requiring reasonable certainty IN
IN" designation Of land sold under exc
cLtiQn Is as fully recogni2 " In this state
as elsewhere. bnt In the different states
there may be some conflict In the de-
cisiOns as to what constitutes sufficient
designation 1t has been held that the
sale Of an undeslgnated part OF O large
tract Of land. there beng no way OF
titlng the part sold, Is void l23 Tex.
3GO In this class Of cases extrinsic evil
intention Of the officer. and this would
tend 10 make that operative rs
conveyance instead of the deed.
The sheriffs levy and deed In
this case are not Ambiguous
as TO the description Of the land levied
on and sold. The law only REQUIRES the
description 20 he such as would enable
parties 10 identify the land by use OF
such mems as would be admissible in
court Of iustire for that purpose.
Neither the decisions nor statutes can
have any hearing favorable to the prop.
OsitiOn Of appellants to the effect that
no valid sale could be mad, Of the In
tercst of the debtor in the league.
unless It was in terms Of sale of the nm
divided interest In the part of the
league set apart to his fathers estate
hv the decree Of partition. made IN pur-
snoncc of q levy on, that interest lR he
particular tract. The Judgment OF the
court Of civil appeals and Of the dis
trict court will he affirmed. Opinion by
Stayton, C. ].
Stooksherry vs. Swan. from Hunt.
This cause comes before this court upon
certificate Of lssent The plaintiff in
huit,d the land in controversy from her
father aud mother and che defendants
eli i'm nndrr = pnrpjrted decd from me
father and mother of pllintih which
WIS admitted rs nm ancient instrument
and comhntted by sworn plea of for
gply The court charged that the 0iii-
dnvit Of forgery did nit require dcfrnd
ants to prove such deed 10 be grnnine,
hut that the burden of proving that the
decd was a forgery was on the plaintiffs.
Was This charge error 1t having been
shown that the plaintiff was only heir
| of the grantee Of the land II was ncces-
sary for the defendants to show that thu
| deed "ulnr which they claimed, was
made by plaintiffs father and another.
| Tie hurlen Of bringing evidence to show
| this fact rested upon the defendants and
q charge to the contrary was erroneous.
| The charge assumed that the age and adj
| mission Of the Instrument made II ncces-
| Nry for the plaintiffs 10 bring evidence
| 10 show That II was moi executed 10y thu
father and mother Of Als. Sttollbcrry
| On the issue Of the gcnuiucss IF the III
strumrnt The jury wore entitled 10 look
to all the corrobOrative fucts considered
| by the court IN the first instance In de-
'rrmring whether the same should be
| admitted in evidence aud the charge was
| calculated 10 induce The belief that all
such facts had been COnclusively settled
| hy the court when tile paper was adj
| United MS an ancient Instrument. The
more fatal objection 10 the charge is
| TINT ii declared TINT tile age and adj
| mission of the instrument must be given
| primn facir effect whereby the burden
of proving the i44irnmrnt net genuine
| was cast upon The pllibtiH Thus the
| court assumed the power tn weigh and
| declare the " light Of the evidence, which
| * u clear violation of tine statute.
| If instead of relying upon the deed
| rs an ancient instrument, Its execution
! lad been proved by subscribing wit
| ness, and upon this admitted In evidence
wnuld 1t be contondad, when the evidence
| Of that witness WIS directly contrudicted
| by one or mOr' witnesses introduced by
The plair.lG. that the codft might law
| fully Charge ,ho burden then rested Upon
the plninlin to prove that the deeds were
| not gcniinef Certainly not No more
weight could be- given to deed ~ mat
| ter of law which was admissible and
| admitted IL an ancient instrument than
| ought 10 De To one proved by subscribing
| Witnesses. The question 0f admis,ibility
| is for the court TO determine. the effect
| TO be given II, when admitted, must be
left to Ire jury, After iusructing rhc
jury with substantial accuracy what
would constitute u seal, aud the time such
| sr1l must have existed on the pnppr TO
give Il validity, the court said that rs a
| general rule of law, nets which puInort
10 have been done 10y public officers with
In thnir official capacity and within the
| scope of their duty Will he presumed 10
| have been regular AMI IN accordance,
| Will their authority until the contrary
/ appears This was IN effect a charge
that the paper offered In evidence was
rrimN tarie proof that the officer affixed
70 his certificate the seal required by law.
When judge iuStructs Jury lint n
given fact Will be- presumed, he must he
| understood to mean that the fact Is to bl,
taken rs established, result which can
not be lsuchad except in those cnscs In
which the presumption is said to he one
of law, otherwisl ihnn by weighing thp
evidence. The Inference of ono IA Il
FROM the existence of others is for the
jury aud not for the court in all eases in
which the fact 10 be- inferred is presumed
or y TO Ice believed or rejected. ms thr
application OF reason aud common eX.
pcriencc to lhc facts proved may Justify.
In all cases where the existence ar
non-cxistcnce of ths facts is tended TO Inc
proved bS the evidence, If there be con.
lllct, the existence or non-cyistence nf
the facts TO be- inferred must he left Ia
the jury, II the law declares the weight
that shall be given to certain evidence, n
court may so inform Il jury. hut il thai
may be ovcrthroWu by other evidence
then 1t becomes the duty Of the court If
evidence tending 10 u contrary concl1sion
he introduced. 10 Leave The whole amos
ton OF fact to the jury; Is Tpxns ~
The conclusion reached by the InninrIfv
OF The judges of the court of civil aplsals
being correct, the Judgment of the lis.
| trlVt kNill l.t r.tk 81 II.