Ury v. Houston

Citations

• 36 Tex. 260

Syllabus

<p>1. After trespass to try title had been brought by plaintiffs against defendant and others, one B., the brother of defendant, gave his own note for the purchase-money of the part of the land which she was sued for, and took the plaintiffs’ title bond in the defendant’s name, conditioned to make good title to her on payment of B.’s note, and reciting the pendency of the suit, and stipulating that it should be dismissed as against her, and that if plaintiffs should fail to establish by decree of court the grant under which they themselves claimed, and to make good and warranty title to the defendant, then both bond and note to be void, etc. Held, that in the absence of proof showing that defendant either authorized, adopted, or ratified this contract between B. and the plaintiffs, or showing that she claimed under the title bond, it was error to hold her thereby to be estopped from setting up adverse title and pleading limitation against the plaintiffs. Held further, that without such proof the bond and note were not competent evidence against defendant for any purpose whatever.</p> <p>2. It was error to permit a deed to be proved by certified copy, without accounting for the original.</p> <p>3. A copy of a deed, duly certified by a county clerk as a copy from his record of deeds, failed to show any acknowledgment of the original by the makers, or any proof of the execution of the original, but the court below allowed the clerk to be sworn and to prove that the original had been duly acknowledged by the makers, and admitted the copy as evidence. Held, error.</p> <p>4. It was error to admit as evidence an administrator’s deed for land, without proof that the maker was administrator, and without proof of confirmation of his sale—the deed not reciting confirmation.</p> <p>5. That the survey of a colonist’s head-right was dated only two days before the closing of the Land Offices, in November, 1835, and that the title issued thereon was dated “ the-day of November, 183