King v. Elson

Citations

• 30 Tex. 246

Syllabus

<p>The court charged the jury to find for .the plaintiffs, if they had shown a regular title to the land from the state, which they did, unless the defendants had shown a superior outstanding title under which they claimed. ■ This was error. The defendants, under the plea of not guilty, had the right to set up the superior outstanding title, although they did not claim under it. (Paschal’s Dig., Art. 5307, Note 1153.)</p> <p>To prove the outstanding title, the defendants read in evidence the testimonio or second original issued to the party, which was read under an agreement that it was issued by the commissioner, but that the original or archive was never filed in the general land office, as contemplated by statute. (Paschal’s Dig., Arts. 69, 70, 71, Notes 250, 251.) It was also proved that the testimonio was never recorded, nor were the lines marked, nor had the land been designated on any map, nor was the grant of general notoriety in the country, nor was there proof that the patentee, under the location, had any •notice of the grant when the location was made; nor was there evidence by either party to show that any protocol, matrix, first original, or archive, ever existed, or ever was or was not in the general land office: Held, that an agreement, “ that the original was never filed in the general land office,” was not an agreement that it is not an archive there, whatever may have been the intention of the parties.</p> <p>Upon this evidence and this mere absence of evidence the court instructed the jury according to the rulipgs in Guilbeau v. Mays, 15 Tex., 410, as modified in Musquis v. Blake, 24 Tex., 461; Nicholson v. Horton, 23 Tex., 47; Word V. McKinney, 25 Tex., 258; W’ilson v. Williams, 25 Tex., 54: Held, that had there been evidence that the protocol of Acosta’s eleven-league grant was not in the general land office when appellee’s survey was made, in the light of these decisons no objection could be made to the charge. (Paschal’s Dig., Arts. 4980, 498