It is competent to explain by proof declarations of a privy in
interest, admitted in evidence without objection, although they
might have been found inadmissible if objected to.
An objection going to the effect, and not to the admissibility
of evidence, should be disregarded.
A request to instruct a verdict for the defendant should be
disregarded when the evidence is conflicting.
A request to charge may be disregarded when the court has
already fully instructed the jury on the point.
The court should refuse to charge upon a purely hypothetical
statement of facts, calculated to mislead the jury.
The law of Texas in regard to forgery considered.
An objection to one of a number of charges is unavailable when
the charge, taken as a whole, fairly states the question which the
jury is to decide by preponderance of proof.
When the defendant in an action of ejectment in Texas sets up
that his title was founded on a warranty deed, and has the
warrantor summoned in to defend, and the plaintiff recovers
judgment, the defendant may have judgment against the warrantor for
the amount of the purchase money, with interest from the day of the
sale.
Page 159 U. S. 4
On the second of October, 1889, Widow Martha Ann Van Horn,
Elizabeth Evans and her husband, David B. Evans, all three citizens
of the State of Missouri, and Mary Ann Boling and her husband, W.
W. Boling, citizens of the State of Kentucky, brought an action
against Joseph L. White, a citizen of Hill County, State of Texas.
The action was one of ejectment to recover a certain tract of land
situated in Hill County. The plaintiffs claimed to be the owners of
an undivided third each of the land for which they sued.
The defendant excepted to the petition upon the ground that it
set out no cause of action, and then filed a general denial. He
next pleaded limitations, under the law of Texas, of 1, 3, and 5
years. He averred his purchase and possession of the property in
good faith, and alleged that he had put improvements thereon worth
$1,125, for the value of which improvements he prayed judgment in
the event of his eviction. In addition, he averred that he and
George G. White, on the 20th day of May, 1882, purchased the
property in controversy under a warranty deed from W. R. Baker for
$1,230 cash and their note, due on the first day of December, 1882,
for $2,460, bearing ten percent interest from date until paid; that
they paid this note before maturity, with interest amounting to the
sum of $2,570; that one-half of the total sum of the purchase
money, or $1,900, was paid by him, and that Baker, as his
warrantor, was liable, in the event of his eviction, to refund the
same with eight percent interest from the date of the respective
payments. He further alleged that on the 6th day of October, 1883,
he bought from George G. White, for $3,789, the undivided half
which had been acquired by the latter as above stated, and that
George G. White also warranted the title, and would therefore be
obliged to repay him, if the plaintiffs recovered, the amount of
the purchase price, with interest. The prayer was that Baker and
White be called in warranty to defend the suit, and that, if it was
decided that the plaintiffs were the rightful owners of the
property, there might be a judgment over against Baker for the
amount of the price paid him, with interest at the rate of eight
percent from the dates of the payments, and a like judgment against
White, with interest from the 6th of October, 1883.
Page 159 U. S. 5
Baker, in response to the call in warranty, filed a plea to the
jurisdiction of the court on the ground that he was not, at the
time of the service of the petition, an inhabitant of the Northern
District of Texas. Subsequently the death of Baker being suggested,
his executors were made parties defendant to the call in warranty,
and the same judgment was prayed against them which had been asked
against him. The executors reiterated the plea to the jurisdiction
filed by Baker, and in addition demurred on the grounds (1) of no
cause of action, (2) because the defendant could not sue them on
the warranty until actually evicted, and (3) because a call in
warranty could not be engrafted on an action of ejectment, the sole
purpose of which was the settlement of the controversy between the
parties plaintiff and defendant in regard to their title to the
property. The executors also insisted that even if they should be
held liable under the call in warranty, they owed no interest from
the date of the sale, because White had been in the enjoyment of
the property from the time of his purchase. George G. White
submitted his rights to the court with consent that if the case
should be decided in favor of the plaintiffs, judgment should be
entered against him for such amount as the court might deem proper.
On the 25th of April, 1890, the plaintiffs filed their replication
to the defendant's plea of limitations, in which they set out that
they, the plaintiffs, claimed the property in controversy as the
heirs at law of J. H. Chism, and that at the time of the taking of
possession of the land in controversy by the defendant and those
under whom he claimed, two of the plaintiffs, Mrs. Boling and Mrs.
Evans, were married women, and consequently the statute of
limitations did not run against them. The replication contained the
further averment:
"Said plaintiffs further show that the defendant, on their claim
of title to the land in controversy, deraign their title through a
forged pretended deed of conveyance, to-wit, a pretended deed which
defendant claims is a transfer of the head right certificate by
virtue of which the land in controversy was patented by the State
of Texas to J. H. Chism, and therefore in law said pleas of three
and five years' limitations cannot prevail. "
Page 159 U. S. 6
The demurrer to the jurisdiction of the court to entertain the
call in warranty was overruled, and the case was tried by a jury,
resulting in a verdict for the plaintiffs for the whole amount of
the land claimed and $350 rent. There was also a verdict in favor
of the defendant for $750, as an allowance for improvements, and
against the estate of Baker, under the calls in warranty, for
$3,690, with interest at eight percent from October 2, 1887, and
against George W. White for the sum of $3,789, with interest from
October 6, 1883 at eight percent. After an ineffectual effort to
obtain a new trial, the defendant, Joseph L. White, brought the
case by error here, making as parties defendants in error the
original plaintiffs, the executors of Baker, and George G.
White.
The undisputed facts are as follows: the plaintiffs are the sole
legal heirs of James Harvey Chism, who served in the army of Texas
during her war with Mexico. In reward for his services, there were
two land certificates issued to him in the name of "J. H. Chism."
The first, known as "a bounty certificate," numbered 4,298, was
certified on the 15th day of September, 1838, and covered 1,280
acres of land. The other was "a head right certificate," issued by
the Board of Land Commissioners of Harrisburg County in the
following form:
"The Republic of Texas"
"County of Harrisburg"
"No. 990 Class 2"
"This is to certify that J. H. Chism has appeared before us, the
Board of Land Commissioners for the county aforesaid, and proved
according to law that he arrived in this republic subsequent to the
declaration of independence, and previous to August, 1836, and that
he is a single man, and produced an honorable discharge, is
entitled to one-third of a league of land, to be surveyed after the
1st day of August, 1838. Given under our hands at Houston, this 1st
day of November, 1838"
"J. G. Hutchinson,
President"
"John Woodruff,
Associate Commissioner"
"Attest: Thos. Wm. Ward,
Clerk"
Page 159 U. S. 7
On the 31st day of October, 1838, J. H. Chism, by a deed drawn
in the County of Harrisburg, sold to R. B. Dobbins, for the sum of
$500, the bounty certificate for 1,280 acres of land first above
mentioned. The clerk of the Board of Land Commissioners for
Harrisburg County, in the performance of his duty under the Texas
law, made a return of the issue of the head right certificate,
describing it as "a second class certificate, No. 990, issued in
November, 1838, to J. H. Chism, for one-third of a league of land."
In 1840, Texas created a "traveling board" whose duty it was to
inspect the records of all the boards of land commissioners
"and ascertain by satisfactory testimony what certificates for
lands had been issued by the respective boards to legal claimants,
and report as soon thereafter as practicable to the Commissioner of
the General Land Office such certificates as they find to be
genuine, setting forth in their reports the number and date of the
certificates, the quantity of the land, and the name of the person
to whom it was issued."
1 Sayles' Early Laws of Texas, p. 385. In June, 1841, this board
made its report to the General Land Office, and described the head
right certificate here involved as follows: "Second-class
certificate No. 701, issued November 1, 1838, for one-third of a
league of land, to J. H. Chisholm." On the 27th of October, 1852,
the following document was recorded in Harris County, Texas -- W.
R. Baker being at that time the clerk of said county:
"Know all men by these presents that I, J. H. Chisholm, for the
sum of $150 to me paid by E. M. Robinson, do hereby sell, transfer,
and convey to the said Robinson, his heirs and assigns forever, my
head right for one-third of a league of land, No. ___, dated
November, 1838, issued by the Board of Land Commissioners for
Harrisburg County, together with the land upon which the same may
be located, to have and to hold the same to him, the said Robinson,
his heirs and assigns forever, and I agree to warrant and defend
the said claim against all claims whatsoever. Witness my hand and
seal at Houston, December 2, 1838."
"J. H. Chisholm"
"Witnesses:"
"George W. Lively"
"J. H. Southmayd"
Page 159 U. S. 8
"Republic of Texas"
"County of Harrisburg"
"Before me, Andrew Briscoe, Chief Justice of Harrisburg County,
came J. H. Chisholm, the grantor above, and acknowledged to me that
he signed and executed the foregoing deed for the uses and purposes
therein contained, to certify which I have hereunto set my hand and
seal of the county at Houston, December 2, 1838."
On January 2, 1858, J. M. Steiner deposited in the General Land
Office of Texas the certificate No. 990, for one-third of a league
of land, issued, as above stated, to J. H. Chism, and lands were
taken up thereunder in Hill County, Texas, and patent was issued
therefor. On the 25th of July, 1888, a copy of the paper which had
been recorded in the County of Harrisburg was placed on record in
Hill County.
The plaintiffs, as heirs of J. H. Chism, claimed the land
covered by the patent issued under this head right certificate.
Their case substantially depended upon testimony tending to show
that, after serving in the army of Texas, Chism returned to
Kentucky and stated that he was entitled to certain lands in Texas,
and had with him papers so showing; that he subsequently went again
to Texas for the purpose of looking after his land claims, and
returned to Kentucky about November, 1838; that on his second
return, he also stated that he had land in Texas, and had sold
some, and that he then had papers indicating his ownership of land
in that state. The testimony of his sisters and others tended to
identify one of the papers which he had with him on this last
occasion with the land certificate No. 990. There was testimony to
the effect that he was a good penman, that he signed his name J. H.
or J. Harvey Chism, and his name appeared as such on the army rolls
and other official documents of the Republic of Texas. He died in
1839. After his death, in 1850 or 1851, his father placed the
papers relating to the claim of the son for Texas lands in the
hands of Augustin Moreman and gave him a power of attorney in order
that he might visit Texas and perfect the claim. Moreman, with the
papers in his possession,
Page 159 U. S. 9
proceeded to Texas for the purpose of executing his agency. On
arriving there, he went to the land office, and exhibited the
papers. The officers of the land office pronounced the claim valid
and in all respects regular, but declined to act upon it because
there was a defect in the power of attorney, it having been
acknowledged by a Kentucky official and not by a commissioner of
the State of Texas. In consequence of this fact, Moreman was unable
to obtain the patent for the land, and left the papers with a Mr.
Fergerson, in Austin, Texas and returned to Kentucky. Before a new
power of attorney could be executed, the father of Chism died, and
Moreman's arrangement with him was thus terminated. Subsequently,
on the request of the mother of Chism, Moreman wrote to Fergerson
for the papers, and they were returned in an envelope. Moreman
handed over this envelope as he received it at the post office,
without examination, to Mrs. Chism. There was also testimony
tending to show that after this date, the heirs of Chism sent the
papers thus received (which are not very accurately identified) to
Texas for the purpose of obtaining the land, and that the papers
thus sent, whatever they were, were burned by accident.
The deposition of Moreman was taken. Annexed to it was a
certified copy of the original certificate No. 990, issued to J. H.
Chism. This was shown to him, and he was asked whether the
original, of which it was a copy, was among the papers which were
turned over to him in 1850 or 1851 by the father of J. H. Chism,
and in connection with which his power of attorney was given. Mr.
Moreman answered:
"I have examined the above copy, and should say that the
original of which it is a copy was among the papers turned over to
me by the father of J. H. Chism. The language seems familiar, and I
recognize some of the terms, as having an honorable discharge, and
being a single man. The original paper was folded twice, and the
folds were somewhat frayed with handling, looking like an old
paper. The writing was remarkably effeminate. I cannot say
definitely whether the original paper was returned to the father or
mother of J. H. Chism or not. The last time I ever saw them was in
Austin, Texas, in 1850
Page 159 U. S. 10
or 1851, in the month of May."
The witness then proceeded to state the facts connected with his
employment, his journey to Texas, his going to the land office, and
his failure because of the defect in his power of attorney.
The defendant's case was supported by the testimony of Baker,
who said that he bought the certificate as the agent of one
Robinson, and that at the time the transfer was drawn, the
certificate was delivered to him by the seller. Describing the
seller, he said:
"He represented that he had been serving in the army, and I have
an indistinct memory that I called his attention to a discrepancy
or difference in the spelling of the name, and that the explanation
was that some people spelled it as it was pronounced, according to
the sound."
He then testified that the original transfer was lost, and that
the witnesses whose names purported to be affixed to it, and the
officer before whom it purported to have been acknowledged, were
dead, and that Robinson, the principal for whom he claimed to have
acted in buying the certificate, lived in the State of New York,
and was known to nobody in Texas except himself and family. His
testimony in regard to Robinson was indefinite. He said that the
man was alive some few years before, and was in New York, but gave
no address by which he might be found. He further testified that he
had sold this certificate, along with others, as the agent of
Robinson to J. De Cordova, and that De Cordova had resold it to
him; that, as the owner of this certificate, he had employed a man
by the name of Steiner to apply for and enter land thereunder.
MR. JUSTICE WHITE, after stating the case, delivered the opinion
of the court.
Page 159 U. S. 11
The assignments of error are addressed first to the alleged
illegal admission of evidence, secondly to the refusal of the court
to give certain charges, and thirdly to the charges actually
given.
1st. The defendant objected to the introduction of the deed of
sale made by J. H. Chism on October 31, 1838, of his bounty
certificate, because it was
res inter alios and
irrelevant. The objection was untenable. The issue of forgery
vel non of the deed from which the title in controversy
was deraigned clearly made the proof relevant. The evidence tended
to show the manner in which J. H. Chism signed his name at or about
the time it was contended that the transfer signed by J. H.
Chisholm had been executed. It was also admissible as tending to
show how J. H. Chism then valued Texas land, and thus to disprove
the claim that he had sold a certificate entitling him to 1,400
acres at $150 at just about the same time he had obtained $500 for
a certificate for a less quantity. Irrespective of this, testimony
had been elicited without objection to the effect that J. H. Chism
had declared, on his second return to Kentucky, that he had sold
land in Texas, and this deed was competent to explain that
statement. It is a matter of no moment whether testimony as to
these declarations of J. H. Chism was admissible or not, since it
was admitted without objection, and it was competent to offer
evidence to throw light upon and explain them.
2d. The objection taken to the statement of the witness Moreman
that "he should say" that the original, of which the certificate
produced was a copy, was among the papers turned over to him by the
father of J. H. Chism, went obviously to the effect, and not to the
admissibility, of that statement. Besides, the objection separates
the words "I should say" from the whole context of the witness'
testimony, whereas the context makes it clear that those words,
instead of being the expression of a conjecture, were simply a form
of speech, for, after using them, the witness proceeded to furnish
the basis for his statement by describing the original document in
such a way as to give emphasis to his identification of the
copy.
Page 159 U. S. 12
3d. The court refused to instruct the jury at defendant's
request, as follows:
"The uncontroverted controverted evidence in this cause shows
that the certificate by virtue of which the land in controversy was
located came into the hands of W. R. Baker, as agent of E. M.
Robinson, as a purchaser, in December, 1838, and that it was
thereafter located on the land by Steiner, as the agent of Baker,
who had acquired the title of Robinson in the same, and if the
person who sold the same to Robinson through Baker, under whatever
name, was at the time of the sale to Baker the owner of the
certificate, you will find a verdict for defendant, and in this
connection you are instructed that it is a presumption of fact that
a person in possession of a certificate is the owner in the absence
of evidence to the contrary, whether he have a written assignment
or not, and it is shown by the evidence that the certificate in
question was in possession of a person who sold it to him for
Robinson recently after it was issued, it having been issued in
November, 1838. If you should believe such person was not the same
to whom it was issued, yet unless the evidence shows that the
person to whom it issued had not sold it, you would be authorized
to find for the defendant."
This charge was rightly refused. It practically requested the
court to disregard the proof, and amounted to a request to instruct
a verdict for the defendant. The very issue in the case was whether
the certificate did or did not come into the hands of Baker, as
agent, in 1838. The reliance of the defendant was on the testimony
of Baker, and the fact that the name "J. H. Chisholm" and the name
"J. H. Chism" were
idem sonans. But Baker's testimony was
directly contradicted by that of Moreman, and it is impossible to
reconcile the two. If the certificate was in Moreman's hands, as
testified to by him, it could not have been in the hands of Baker
in 1838, as sworn to by him. There were, besides Moreman's
testimony, many circumstances tending to refute Baker's statements.
These were the fact that the transfer from Robinson was not put on
record until 1852, when Baker was clerk, and therefore himself made
the record; the loss of the original; the fact that the transfer
was made in the name of Robinson, whose existence
Page 159 U. S. 13
and whereabouts were so meagerly disclosed as to render it
impossible from the testimony to discover him; that, although the
first transfer in 1838 purported to have been made in the name of
Baker as agent, there was a subsequent transfer by Baker to De
Cordova, and yet a third transfer from De Cordova back to Baker;
that the patent for the land was not obtained until 1858, many
years after Baker claimed that he was in possession of the
certificate; and finally that the transfer itself, when examined by
the light of surrounding facts, affords some ground for the claim
that Baker could not have had the certificate in his possession in
1838, when the transfer was made.
The certificate contained six statements: first, its class;
second, the quantity of the land for which it issued; third, its
number; fourth, the date of its issue; fifth, the name of the
person to whom it was issued; sixth, the county from which it was
issued. The transfer, in describing the certificate, states it as
having been issued to J. H. Chism; makes no mention of day or
number. It says, "No." and that the certificate was "dated
November, 1838," giving no day of the month, and it is signed "J.
H. Chisholm." The failure in the transfer to give either the number
of the certificate or the day of the month on which it was issued,
as also the mention of the name of J. H. Chism in its body, coupled
with the signature "J. H. Chisholm," were in themselves claimed to
be, as they undoubtedly were, circumstances tending to show that
the party who wrote the transfer could not have been in possession
of the certificate.
It was contended that this inference was further strengthened by
the public records. Thus, the return to the General Land Office by
the county clerk gave the number 990, corresponding with that of
the certificate itself, and gave the month as November, 1838,
without giving any day of the month. The report of the traveling
board described the certificate by a wrong number, 701, instead of
990. It gave the date thereof as November 1, 1838, and the name of
the grantee as J. H. Chisholm. The fact is that the transfer seemed
to have been drawn with reference to these public records, and, in
order not
Page 159 U. S. 14
to conflict with either of them, it uses the name of J. H. Chism
in the body and the name of J. H. Chisholm in the signature, and it
omits the number of the certificate altogether, and mentions no day
of the month, the day being also omitted in one of the records.
Under this condition of the proof, the court was obviously correct
in not taking the question of fact from the consideration of the
jury.
4th. The court refused to charge as follows at the request of
the defendant:
"The certificate was issued to a person whose name was spelled
therein 'Chism.' The transfer in evidence shows that the person who
transferred the same spelled his name 'Chisholm.' Now if the person
who so transferred the certificate was the same to whom it issued,
it is not material in what form he signed it; you will find for the
defendant. And in determining whether he was the same person, you
may consider the fact, if a fact, that the person who sold to Baker
was a soldier, the date of his certificate, the whereabouts of J.
H. Chism about the time, and the evidence introduced by plaintiffs
that J. H. Chism was in Texas about the time of the transfer."
This charge was also correctly refused. In some particulars, it
assumed the existence of facts not proven by asking the court to
state to the jury that Chism was in Texas about the time of the
transfer, December 2, 1838, while there was evidence that he
returned to Kentucky in November, 1838. Besides, we think the
charge of the court, as actually given to the jury, furnished all
that the defendant was entitled to on this point. It was as
follows:
"The defendants have offered what purports to be a transfer of
the certificate granted J. H. Chism to one E. M. Robinson, which
transfer is signed 'J. H. Chisholm,' and in order for this transfer
to convey title to said certificate the proof must satisfy you that
the person who made said transfer was the same man to whom said
certificate was issued, and unless it does so satisfy you, the
defendant cannot defeat the plaintiffs' recovery of two-thirds of
the land sued for, and on this issue as to the person who made the
transfer being the same person
Page 159 U. S. 15
to whom said certificate No. 990 issued the burden of proof is
on the defendant, and if the proof does not so satisfy you, the
plaintiffs are entitled to recover the whole land, unless defeated
by the defendants' plea of five-year limitations as to Mrs. Van
Horn's one-third interest therein."
5th. The court refused to give at defendant's request the
following charge:
"It is shown by the evidence that the certificate has been in
the land office since 1857, and is now there, and if the
certificate or paper about which plaintiffs testify was burned in
Dallas or elsewhere, then the paper testified about by them is not
this certificate."
This charge was also correctly refused. It asked the court to
instruct upon a purely hypothetical statement of fact and was
calculated to confuse, and was, moreover, fully covered by the
charges actually given.
6th. The court refused to give the following requested
charge:
"The transfer introduced by the defendant to the certificate is
not a forgery in law, whether signed by the person who was the
owner of said certificate acquired from the person to whom it
issued or by the person to whom it issued, and you are instructed
that if in this case you should find for the plaintiffs, in any
event, you will find for the defendant one-third of the land as
against M. S. Van Horn, and for the other plaintiffs only
two-thirds of the land."
This charge was correctly refused. There was no evidence tending
to show that the transfer was made by any person claiming to have
acquired the certificate from Chism; on the contrary, the testimony
of Baker and all the testimony in the case on both sides presented
the issue of whether Chism, the person to whom the certificate had
been issued, signed the transfer. There was no proof in any way to
indicate that Chism had transferred to some one else his
certificate, and that this other person had signed "J. H. Chisholm"
in the alleged transfer to Baker. That portion of the charge which
asked that the jury be instructed that if the transfer was signed
by Chism, to whom the certificate issued, it was not a forgery, was
fully covered by the charge given.
Page 159 U. S. 16
7th. The court gave the following charge, and exception was
taken thereto:
"If you believe from the evidence that W. R. Baker falsely made
or caused or procured to be made falsely, or in any way aided,
assisted, advised, or encouraged the false making, of the transfer
to E. M. Robinson, signed 'J. H. Chisholm,' and purporting to
convey the land certificate 990, issued to J. H. Chism, with intent
to make valuable thing or money thereby, or with intent to set up a
claim or title, or to aid or assist anyone else in setting up a
claim or title, to the land in controversy, or in any way to
injure, obtain the advantage of, or prejudice the rights or
interest of the true owner of the land, then the said transfer is a
forgery, and you will find for plaintiffs for the land in
controversy."
It is claimed that this charge was erroneous, because it
submitted issues not raised by the evidence, and was calculated to
impress the jury with the belief that there was some proof of such
action on the part of Baker, and thus prejudice the defendant's
case. But this objection takes it for granted that there was
nothing in the testimony indicating that Baker made the false
endorsement, if one was made. We have already stated the tendency
of the testimony on both sides, and that the very nature of the
direct as well as the circumstantial evidence necessarily raised
the question of forgery
vel non, and of Baker's connection
with the forgery, if there was any. Nor is this charge amenable to
the criticism that it assumes the fact that the transfer was false.
It is true that the court used the words, "in any way assisted,
advised, or encouraged the false making of the transfer to E. M.
Robinson, signed
J. H. Chisholm.�" But it is manifest
from the connection in which these words were used and from the
entire charge given that the court left to the jury the question of
whether the transfer was forged or not, without expressing any
opinion thereon. Indeed, it was expressly charged that on the issue
of the forgery the burden of proof was on the plaintiffs.
8th. The following charge was also objected to:
"If you believe from the evidence that a man of the name of J.
H. Chisholm, or of any other name, who was not the identical
Page 159 U. S. 17
party to whom the certificate No. 990, issued to J. H. Chism,
did falsely make the transfer to E. M. Robinson, signed 'J. H.
Chisholm,' with the intent to make money or other valuable thing
thereby, or with intent to set up a claim or title, or aid or
assist anyone else in setting up a claim or title, to the land in
controversy, or in any way to injure, obtain the advantage of, or
prejudice the rights or interest of the true owners of the land, or
with any fraudulent intent whatever, then said instrument you will
find to be a forgery, and you will bring a verdict for plaintiffs
for the land in controversy. If you believe from the evidence that
J. H. Chisholm, or any other person not being the identical person
to whom certificate No. 990, in the name of J. H. Chism, issued,
did falsely counterfeit the original grantee in making the transfer
to E. M. Robinson, signed 'J. H. Chisholm,' with the intent to make
money or other valuable thing thereby, or with the intent to set up
a claim or title, or aid or assist anyone else in setting up a
claim or title, to the land in controversy, or to cast a cloud upon
the title, or in any way injure, obtain the advantage of, or
prejudice the rights of the true owner of the land, or with any
fraudulent intent whatever, then you will find said instrument a
forgery, and will find for plaintiffs for the land in
controversy."
This charge, it is said, is erroneous (a) because it presents an
issue not raised by the evidence, and (b) because it excludes the
hypothesis that a person to whom J. H. Chism may have transferred
the certificate by delivery was the person who signed the transfer
"J. H. Chisholm," and (c) because, if such person signed his own
name, "J. H. Chisholm," has signature was not a forgery under the
law then existing in Texas.
There was, as we have already said, no evidence tending to show
a transfer by J. H. Chism, the grantee, to another person, and an
assignment by such person to Baker. The entire proof on both sides
was addressed to the question of whether the certificate was in the
possession of Chism at the time that Baker claimed that it was
delivered to him, and so remained thereafter. The whole case turned
upon this question, and the issue of whether the transfer was a
forgery or not in a large
Page 159 U. S. 18
measure depended on the conclusions formed by the jury as to
this fact. But the claim that, if the name of J. H. Chisholm was
signed by one bearing that name, the writing of this signature
could not under any circumstances constitute a forgery is unsound.
It is asserted by the plaintiff in error that the law of Texas as
to forgery prior to 1876 was as follows:
"He is guilty of forgery who, without lawful authority and with
intent to injure and defraud, shall make a false instrument in
writing, purporting to be the act of another, in such manner that
the false instrument so made would (if the same be true) have
created, increased, diminished, discharged, or defeated any
pecuniary obligation, or would have transferred or in any manner
have affected any property whatever."
Art. 2093, Paschal's Digest of Laws.
Clearly if one whose name was J. H. Chisholm took a certificate
issued to J. H. Chism, and, falsely personating J. H. Chism, signed
his name as J. H. Chisholm, intending thereby to counterfeit the
signature of J. H. Chism, and, by reason of the fact that the names
were
idem sonans, to produce the impression that the name
signed was that of J. H. Chism, this act would have been a forgery
under this statute. The case of
Commonwealth v. Baldwin,
11 Gray 197, cited to the contrary, sustains this view.
9th. The ninth assignment is covered by what we have already
said.
10th. The court gave the following charge, which was objected
to:
"The defendants have offered what purports to be a transfer of
the certificate granted J. H. Chism to one E. M. Robinson, which
transfer is signed 'J. H. Chisholm,' and in order for this transfer
to convey title to said certificate, the proof must satisfy you
that the person who made said transfer was the same man to whom
said certificate was issued, and unless it does so satisfy you, the
defendant cannot defeat the plaintiffs' recovery of two-thirds of
the lands sued for, and on this issue, as to the person who made
the said transfer being the same person to whom said certificate
No. 990 issued, the burden of proof is on the defendant, and, if
the proof does not so
Page 159 U. S. 19
satisfy you, the plaintiffs are entitled to recover the whole
land unless defeated by the defendant's plea of five years'
statutes of limitation as to Mrs. Van Horn's one-third interest
therein."
It is contended that the word "satisfy" exacted a greater degree
of proof than the law required, and we are referred to cases in
Texas which, it is claimed, hold that an instruction, unless the
party on whom the burden of proof rests establishes his case by
"satisfactory evidence," the jury must find for the other side,
exacts from the first party an undue degree of proof. Whatever,
abstractly speaking, may be the merits of this objection, it is
unavailable here. The charge objected to was only one of a number,
and, we think, taking all the instructions together, they fairly
stated to the jury that their conclusions were to depend on their
belief as to the preponderance of proof.
11th. This assignment of error is addressed to the charge of the
court in regard to the controversy between White and his
warrantors. This charge is thus set out in the record:
"The court instructed the jury that if they found for the
plaintiff for the whole of the land in controversy, they would find
for the defendant White, against the executors of Baker, the sum of
$3,960, with eight percent interest from October 2, 1887 (it being
in evidence that that was the amount of the purchase money paid by
White to Baker, and this suit having been filed on the second day
of October, 1889), and the court also instructed the jury to find
for the defendant White the value of his improvements made in good
faith, and that, if the amount exceeded the value of use and
occupation of the premises from the second day of October, 1887,
they would find the value of the use and occupation from the time
said White took possession, not to exceed the value of the
improvements, and deduct it from the value of the
improvements."
It is contended that to allow the defendant interest only from
October 2, 1887, instead of from the date of the sale in 1882 was
erroneous. The Texas statute limits the right to recover, in an
ejectment suit for use and occupation, to a period of two years
prior to the commencement of the suit. 2 Sayles' Tex.Civ.St. art.
4809.
Page 159 U. S. 20
The court evidently had this statute in view, and considered
that, as the plaintiffs' right to recover for use and occupation
was restricted to two years, the defendant's claim against the
warrantor for interest should be confined to the same period upon
the theory that, as long as the possessor enjoyed the fruits, he
was not entitled to recover interest on the price. This view,
however, overlooked another provision of law, which allows the
plaintiff in ejectment to recover for use and occupation for a
longer period than two years prior to the bringing of the action
where the defendant in ejectment sets up a claim for improvements.
In such a case, the law allows a claim for use and occupation
beyond the period of two years, and to the extent necessary to
offset the claim for improvement. 2 Sayles' Tex.Civ.St. arts. 4810,
4815. Here the defendant made a claim for improvements, and the
claim for use and occupation was allowed beyond two years, and to
the extent necessary to offset the improvements. As the claim for
use and occupation did not equal the claim for improvements, the
former must necessarily have extended to the full period of
defendant's occupancy. To limit the defendant's recovery of
interest against the warrantor to the period of two years was
therefore to deprive him of interest on the price from the day of
the sale, although he was held accountable for use and occupation
from that date. He ought therefore to have been allowed interest
against the estate of Baker from the day of the sale.
Error in this regard, however, in no way concerns the
controversies between the plaintiffs and the defendant. The
judgment will therefore be
Affirmed, except in regard to the issues between the
defendant and the executors of Baker, defendants in the call in
warranty. In this particular, the case is remanded, with directions
so grant, on application of defendant, a new trial; in all other
respects the judgment is affirmed.
