text:
    Abraham Fletcher v. James F. and Jacob L. Ellison.
    (Case No. 3595.)
    1. Deed — Evidence.—A deed never proven or acknowledged for record, or recorded, may be a valid and effectual conveyance, and is admissible in evidence upon proof of its execution. 28 Tex., 063.
    2. Ancient deed — Evidence.— A deed more than thirty years old is admissible in evidence, without proof of its execution, as an ancient deed, where it is produced by the party claiming under it and entitled to its custody, and nothing is adduced in proof to cast suspicion upon it. ■
    3. Deed — Description.— Description of land in a deed locating it in such manner that running one line will designate it and set it apart, and there is only one part of the survey where it could be so designated, is sufficient.
    4 Heirs — Innocent purchaser.— One who 'buys from heirs who sell without recourse upon them for warranty takes only such title as they own, and he is not an innocent purchaser.
    5. Same.— A deed from the heirs of a vendor whose conveyance has never been recorded conveys no greater title than was vested in the heirs. The land having been conveyed by the unrecorded deed of their ancestor, they inherited nothing from him, and their deed will not convey anything. 34 Tex., 553.
    6. Unregistered deed — Purchaser in good faith —Notice.—To entitle a subsequent vendee to have a prior unregistered deed postponed to his subsequent conveyance, it must appear: 1st. That he was a purchaser bona fide. 2d. That he purchased without actual or constructive notice of the title of the prior vendee, and that the purchase money has been paid; a recital of that fact in the deed is not sufficient. 23 Tex., 449; id., 528.

      7. Bankrupt sale — Quitclaim deed.—A purchaser at bankrupt sale acquires only a quitclaim deed. 34 Tex., 417.
    8. Purchaser in good faith — Quitclaim deed.— A quitclaim. deed cannot exclude the operation of a prior unrecorded deed, and only conveys the interest of the grantor at the time he makes it. One claiming under it cannot be deemed a bona fide purchaser of any greater interest than his grantor had. 38 Tex., C35; 11 Wallace, 232.
    9. Payment of purchase money.— Giving a negotiable note for the purchase money of land, which has been assigned to an innocent holder is equal to the payment of money, but it must appear that the land was purchased and not the tille to it. 17 Tex., 673.
    10. Unpaid purchase money—Good faith.— Where the defendant pleads innocent purchase in good faith, the plaintiff is entitled to recover to the extent that the purchase money remains unpaid at the institution of the suit.
    11. Stale demand.— Stale demand has no application where a plaintiff asserts his legal title, asking no equitable relief, and he can only be defeated by the general law of limitation applicable to purely legal demands.
    12. Possession.— One making an entry upon land under a claim of title thereto by a recorded deed is deemed to hold possession coextensive with the boundaries stated in his deed, when there is at the time no open adverse possession of the land in any other person.
    Error from Caldwell. Tried below before the Hon. L. "W. Moore.
    The facts appear in the opinion.

      James H. Burts and Stringfellow <& MoNeal, for plaintiff in error.

      Nix dk Story, for defendants in error.
   Quinan, J.

This wras an action of trespass to try title, instituted in the district court of Caldwell county on 25th June, 1875, by Fletcher against James F. and Jacob L. Ellison, for the recovery of a tract of land out of the Pettus two-league grant on the San Marcos river.

The plaintiffs deraigned title by virtue of a conveyance from Wm. Pettus, the original grantee, to one Stephen Taylor, dated June 26, 1839, and by a conveyance from Taylor and wife to him, dated October 10, 1840.

The conveyance from Pettus to Taylor describes the land as follows: “The said five hundred acres are to be surveyed and divided from the said tract of two leagues of land in the following manner, namely: One thousand acres which this vendor has heretofore sold to Benjamin Fulcher is to be taken from the lower part of the said tract of two leagues by a line running from the river to the back part of the tract parallel with the said lower line, having a front on the river bearing the same proportion to the whole front that one thousand acres does to the whole tract of two leagues, and the five hundred acres now sold shall in like manner be laid off by a line running from the river to the back part of the tract, parallel with the upper line of Fulcher’s tract, and shall have one-half the front of Fulcher’s tract, it being the intention of the vendor that both Fulcher and Taylor shall have their purchases run off by lines parallel with the lower or southeast side of this vendor’s tract, and that their fronts on the river shall bear the relative proportion to the whole front of the two leagues that their respective purchases do to said two leagues, or as near as may be, the meanders of the rixmr considered, so as to give the full quantity of land respectively.”

To the introduction of this deed in evidence the defendants excepted: 1. Because of a variance in the description of the land from that mentioned in the petition. 2. Because never acknowledged or proven for record before any officer authorized by law to take acknowledgment of deeds. 3. Because said deed describes no particular land, and is uncertain as to the locality of the land intended to be conveyed thereby. 4. Because never recorded, etc.

These objections were tiverruled by the court, and xve think correctly so. 1. We are unable to distinguish any material xmriance between the description of the land in the petition and the deed. 2. A deed, though never proven or acknowledged for record, or recorded, may nevertheless be a valid and effectual conveyance, and may be read in evidence upon proof of its execution. For aught that "appears in the bill of exceptions, the clue execution of the instrument may have been proven; but without this, it is a document more than thirty years old, and was admissible in evidence without proof of its execution as an ancient deed, inasmuch as it was produced by the party claiming under it and entitled to its custody; and the fact of the sale by Pettus to Taylor, and the purchase by plaintiff from Taylor under it, is testified to by the witness Fletcher, and that there was nothing to throw suspicion upon it adduced in proof. 1 Greenleaf, 570; Stroud v. Springfield, 28 Tex., 663.

3. The land is sufficiently described to identify it. That this five hundred acres was to adjoin the one thousand acres sold to Fulcher is made clear by the references in the deed to the Fulcher tract, which would otherwise be irrelevant. Fulcher’s tract is to be taken from the lower part of the two leagues by a line parallel to the lower line, and so in lihe manner the five hundred acre tract shall be laid off by a line parallel with the upper line of Fulcher’s tract; the five hundred acre tract to have half the front of Fulcher’s tract, and Fulcher and Taylor were to have their tracts run off by parallel lines with the southeast line of the leagues. There is but one line parallel to the lower line of the leagues indicated to be run, to define and set apart the five hundred acres, and that result could c,only be attained by taking the upper line of the Fulcher tract for the other parallel boundary line. ETowhere else would the running of a single line parallel with the lower line and to the back line of the tract set apart five hundred acres out of the leagues. It is plain from the map of the two leagues which is in the record that a line run upon the upper portion of the league parallel with the lower line of the league so as'to cut off five hundred acres there, would take in very little, if any, front upon the San Marcos river. And to locate this five hundred acres upon any other portion of the leagues than adjoining the Fulcher tract on the upper lines, would require the running of more than one parallel line. These circumstances and the reference in the deed to the Fulcher survey, and the association of Fulcher and Taylor in the running of their lines, leave no room to doubt that the land in controversy adjoined the Fulcher survey.

The plaintiff also introduced in evidence the deed from Taylor and wife to himself for the same land, dated October 10, 1840. To this conveyance the “same objections” were made as to the deed from Pettus to Taylor, which were, as we have seen, properly overruled. In many respects the same objections did not apply.

But in addition, the plaintiff proved that he paid Taylor a valuable consideration for the land, $2,000 in property; that he knew that Mr. Pettus had sold the land to Taylor, and that he purchased it from Taylor in good faith without any knowledge of any adverse claim to the land by Mew-some or any one else.

This proof, we are of opinion, established prima facie the plaintiff’s title to the land and his right to recover it, unless the defendants have shown a better title in themselves to retain it.

The defendants deraigned title to the land as follows.

1. A conveyance from Pettus to Mathan M. Mewsome, dated April 9, 1837, for one quarter of a league of land out of his two-league grant.

2. A deed from the heirs of Mewsome to P. B. Calhoun, dated 16th February, 1855, for all their interest in that land.

3. A deed from B. C. Saunders, assignee in bankruptcy of Calhoun, to M. C. Hamilton, dated August 3, 1869, and the proceeding in the bankruptcy of said Calhoun.

4. A judgment of the district court of Travis county in the suit of Calhoun v. Hunger, administrator of Pettus, Crayton and others, wherein Hamilton intervened and judgment was entered for him for one thousand one hundred and seven acres, to be taken out of the Pettus two-league grant, and decreeing that this one thousand one hundred and seven acres be located next adjoining the lower one thousand acres, or “Martindale tract,” in the two leagues.

The petition of Calhoun in this suit set out his purchase from the heirs of Newsome, and prayed for partition. The petition'of Hamilton in intervention alleged his purchase of the interest of Calhoun at bankrupt sale and his deed from the assignee, and prays that Calhoun’s interest be set aside to him.

5. A warranty deed from M. C. Hamilton, dated 12th August, 1873, to James F. Ellison for this one thousand one hundred and seven acres of land.

6. A warranty deed from James F. Ellison to Jacob L. Ellison, dated 1st January, 1874, for fifty acres of this land adjoining the Martindale tract.

To the introduction in evidence of the deed from Pettus to Newsome, many objections were urged, and an affidavit ■was offered by plaintiff’s attorney impeaching it as a forged instrument. It will not be necessary to consider these objections specially. Very clearly the affidavit of forgery was inconsiderately made. The original deed was not in evidence, the parties agreeing that copies of the record might be used in place of the original. But a copy of the record from Gonzales county was made and proved to be an exact copy. It did not in the slightest degree impugn the validity of the original instrument or the correctness of that copy, that (as appears to have been the fact) an incorrect copy from that record may have been taken and incorrectly recorded in Caldwell county. The execution deed as recorded in Gonzales county seems to have been proved by the oath of B. M. Williamson, a subscribing witness. Pettus, a son of the grantor, testifies that in 1840 he heard his father speak of having sold land to Col. Newsome. In the case of Crayton v. Hamilton, 37 Tex., 269, it was held that this same deed was properly proved for registration, and the objection made to it on that ground is therefore untenable. There is nothing to throw the slightest suspicion upon its genuineness.

It is also objected that the description of the land conveyed to Newsome is too indefinite. The deed purports to convey “one-quarter of a league of land on the east side of the river San Marcos in De Witt’s colony, etc., to have a proportionate front regarding the front on the river San Marcos of the two leagues of land which were conceded to me by the Mexican government in 1832,” binding himself to make Newsome a good and sufficient legal title to the land whenever lawfully required so to do. This description is not, certainly, very definite, but the legal effect of the instrument was, we think, to vest in Newsome ah interest in Pettus’ two-league tract to the extent of one-quarter of a league as a tenant in common .with the grantor, Pettus. Freeman on Co-tenancy, 96.

The next link in the chain of title of defendants is the conveyance from the heirs of Newsome to Calhoun. No agreement is filed admitting the death óf Newsome, and that Rebecca Newsome and others, the grantors, are his heirs. This deed was recorded in Caldwell county on the 15th January, 1859, and purported to “ bargain and sell, quitclaim and convey to P. B. Calhoun, in consideration of $3,000 paid and his note for $1,111, payable in six months,” all the right, title, claim or interest they inherit from Nathan Newsome in a certain tract of land, ... it being one-quarter of a league of land situated on the east side of the San Marcos river. . . . The said one-quarter of a league of land to have a proportionate front regarding the front on the San Marcos river of two leagues of land which were conveyed to William Pettus by the Mexican government in the year 1832. The conditions of the foregoing bargain and sale are these: “ Whereas, the before-mentioned parties of the first part have inherited, as heirs at law, from Nathan M. Newsome his interest in said one-fourth league of land, located as aforesaid, and have this, day conveyed the same to P. B. Calhoun, without recourse upon them, or either of them, for warranty of title; and whereas, the said Calhoun has paid in cash to the parties of the first part the sum of $3,000, and has executed his note payable to the said parties of the first part for the sum of $1,111, payable in six months; now, if the said Calhoun shall well and truly pay said note, this deed to be in full force,” etc., reserving a lien upon said land till the obligation is complied with.

It is important to inquire what title was conveyed by this deed to Newsome. It is to be observed it is not only a deed from heirs, but specially a quitclaim deed of whatever interest they inherited from their father in this land. It purports to convey, and does convey, no more. Did it embrace the land in controversy in this suit? The. answer to this must be found by determining what interest Newsome had in the land at the time of his death to descend to his heirs. His conveyance from Pettus vested in him, as we have seen, an interest in the two leagues to the extent of one quarter of a league in common with Pettus. But that deed, though it purports to- have been executed 9th April, 1837, was never recorded until 29th May, 1846. And in the mean time Pettus sold the five hundred acres in controversy by metes and bounds to Taylor, and Taylor to plaintiff, by deed, with full warranty, dated 10th October, 1840, and it is proved that the plaintiff paid the full purchase price of the land without any notice, actual or constructive, of the previous sale by Pettus to Newsome, and so became a purchaser in good faith of the land. It follows that Fletcher acquired the better right to the land. It became his absolutely. Newsome could no longer set up any lawful claim to it. Nor could Fletcher, being a purchaser in good faith who had paid his purchase money, be divested of his title so acquired by the subsequent registration of the previously unregistered conveyance from Pettus to Newsome. The heirs of New-some then did not inherit the land in controversy, and their deed to Newsome did not convey it to him. Rodgers v. Burchard, 34 Tex., 453, and the cases cited.

The next link in the chain of defendants’ title is the deed from B. 0. Saunders, assignee in bankruptcy of P. B. Calhoun, to M. C. Hamilton. To the introduction of this deed the plaintiff excepted, on the ground that it was not duly acknowledged for record. The exception does not point out in what particular the acknowledgment is insufficient. It was acknowledged. before the clerk of a court of record having a seal. Pas. Dig., art. 7413.

This deed purports to convey to M. C. Hamilton “ all the undivided right, title and interest of the said P. B. Calhoun, in and to the lands hereinbefore described in as full and perfect a manner as I can and ought to do as assignee.” The interest conveyed is described as the undivided interest of Calhoun in a two-league grant of land, being an eighth part thereof in the Pettus two-league grant, “and was conveyed by Pettus to Newsome with the right to select the same on any part of the two-league survey, except the lower one-eighth thereof which had been previously sold,” etc.

This deed was supplemented by the introduction in evidence of the proceedings of the United States district court of the middle district of Tennessee, in the bankruptcy of Calhoun. In this transcript is shown the adjudication of Calhoun as a bankrupt and the surrender by him of all his property for the payment of his debts, and the appointment of Saunders as his assignee. From the record of these proceedings, the defendant read a copy of assignment from the register in bankruptcy to B. C. Saunders, assignee, of the effects of the bankrupt, Calhoun. To the introduction of this copy of the assignment plaintiff excepted, on the grounds, “ 1. Because said assignment had never been recorded in Caldwell county. 2. Was not properly a file paper in United States district court. 3. Was not proved for record in Caldwell county.”

These objections, we are of opinion, were properly overruled. The recording of the assignment wras not necessary to the validity of the transfer. There is but one original assignment, and that must be filed eventually in the office of the clerk of the district court. And the copy in evidence was duly certified to be correct by the custodian of it. If, however, there was error in this, it was immaterial, for the property of the bankrupt was vested in the assignee by operation of the law. Bump on Bankruptcy, 130.

But it was further in evidence that in a suit instituted by Calhoun against Crayton and others, occupants of the two-league grant, Hamilton intervened, alleging his purchase at bankrupt’s sale of Calhoun’s interest in the land, and in that suit it was adjudged to him, and partition made setting apart to him, as against the other parties in the suit, one-fourth of a league of land by metes and bounds, adjoining the Fulcher or Martindale one thousand acres, which would include the five hundred acres in controversy in this suit.

By these deeds and proceedings, whatever right or interest Calhoun had in the land was vested in Hamilton. His conveyance from the assignee was, on its face, a quitclaim deed and no more; so that he became the purchaser 8f the New-some title by a quitclaim deed from Calhoun, who, himself, acquired it by a quitclaim deed, and so took the risk of the title. He acquired no larger interest in the land than New-some himself had at his death. Dykes v. Miller, 23 Tex., 417.

“A quitclaim deed,” says Mr. Washburn, “does not pass any more title than the grantor has, and does not give the one who claims under it the rights of a bona fide purchase without notice.” 3 Washburn, Beal Prop., 356; May v. LeClair, 11 Wall., 232.

This rule is laid down very broadly in the case cited of Rodgers v. Burchard, and again in Graham v. Hawkins, 38 Tex., 635, where it is said, “A quitclaim deed conveys only the interest of the grantor at the time he makes it, and that a party claiming under it cannot be deemed a bona fide purchaser of any greater interest than his grantor had at the making of the deed; and that a quitclaim deed cannot exclude the operation of a prior unrecorded deed.”

It is true that in Taylor v. Harrison, 47 Tex., 461, and in Harrison v. Boring, 44 Tex., 255, this principle is said to be applicable only “to quitclaim deeds in the strict sense of that species of conveyance; and where its legal import is a quitclaim or deed of release of all one’s right, title and interest, which is not intended and does not purport to convey an absolute right to land without covenants of warranty, as contradistinguished from a conveyance of the title, or chance for title, which the grantor may be supposed to have. Not only the terms of the deed, but the adequacy of the price given, and other circumstances attending the transaction, may serve to show, when brought in evidence, whether the purchaser bought the land or bought merely the title.” But in the present case there is no circumstance in proof attending these transactions between the heirs of -Newsome and Calhoun, or between Calhoun or Saunders, his assignee, and Hamilton, which would warrant us in concluding that the deeds to them were other than what upon their face they purport to be, mere quitclaim deeds.

But it is in proof that Hamilton took possession of this one-fourth of a league of land March 28, 1873, and after-wards, on August 12, 1873, sold the land to the defendant, James F. Ellison, executing to him a conveyance therefor, with full covenants of warranty. The consideration named in the deed was §9,000, and of this amount it is shown that Ellison had paid, before the institution of this suit, the sum of §6,000. He lived upon the land and made valuable improvements, and purchased without knowledge of any adverse claim. His first payment of the purchase money, §3,000, was paid down; the second payment was made twelve months later; but the testimony does not show conclusively whether, at the making of the second payment, he had notice of the plaintiff’s claim. Are, then, the defendants entitled to the land as purchasers bona fide? “To entitle a subsequent vendee to have a prior unregistered conveyance postponed to his subsequent conveyance, it must appear, 1st. That he was a purchaser bona fide; 2d. That he purchased without notice, actual or constructive, of the title of the prior vendee. It must appear that the purchase money was bona fide and truly paid; a recital of that fact in the deed is not sufficient.” Watkins v. Edwards, 23 Tex., 446. “ It is held that though it be secured to be paid, yet if it be not in fact paid before notice of the elder title, the plea of innocent purchaser will not avail.” Beaty v. Whitaker, 23 Tex., 528. The giving of a negotiable note, which has been assigned to an innocent holder, will be of equal effect with the payment of money. Case v. Jennings, 17 Tex., 673.

We are of opinion that, under the facts as developed in evidence in this case, the defendants can defend their title and- possession of the land in controversy as innocent purchasers to the extent of their actual payment of the purchase money, and to that extent only. Jas. Ellison purchased from Hamilton, who was in possession of the land, and held the apparent legal title, without notice of Fletcher’s claim, and paid in good faith a-great part of the purchase money. He has a conveyance of the land, with warranty, and not merely , a quitclaim of Hamilton’s right or interest in it. He purchased the land, and not simply Hamilton’s title to it.

But, inasmuch as the whole of the purchase money has not been paid, and he still owes Hamilton on the purchase, 'as it appears, to the extent that the land had not been paid for, defendants’ title must yield to the superior right of the plaintiff. Huyler v. Dahoney, 48 Tex., 239.

Jacob Ellison purchased from James fifty acres of the land, but of that he resold to James forty acres, so that he now claims but ten acres of the land, and for that he has fully paid, and is entitled to be protected in his claim.

As our conclusions upon the subjects discussed will lead to a reversal of this judgment and a new trial of the case, and as upon that trial it may assume new and very different features, it would be perhaps premature now to determine whether James Ellison would be entitled to retain the land upon making compensation to Fletcher out of the unpaid purchase money for the portion of the five hundred acre tract which he has not paid, appropriating the amount he has paid to the full payment for the residue of the tract over the five hundred acres, or whether Fletcher should recover such portion of the land as has not so been paid for, and partition made with Ellison. These questions have not been discussed by counsel in their briefs, nor argued, and we pretermit the expression of any opinion in regard to them.

It remains to- consider the defendants’ pleas of stale demand and the statute of limitations.

The plea of stale demand we think has no application to the cáse. The plaintiff is asserting his legal title. He asks no equitable relief, and his legal right can only be defeated by the general law of limitation applicable to purely legal demands.

We are of opinion that the evidence does not support the plea of limitation. The earliest possession of the land in controversy proven is within three years previous to the institution of the suit. But the defendants insist that the parties who were previously for ten years and more in possession, of other portions of the two leagues were tenants in common with Hewsome, Calhoun and Hamilton, and that their possession inures to the benefit of the defendants. This proposition is not supported by the proof. Ho possession has been proven by any party, except a possession under title to specific portions of the land, within prescribed boundaries, not as tenants in common, but holding severally adversely to Hewsome, Calhoun, Hamilton and all other persons. The deed to the upper half of the two leagues from the administratrix of Pettus to Shelburne sets apart that half specially in discharge of Pettus’ bond to Shel- and under this deed the earliest entry upon the land seems to have been made. The other deeds introduced in evidence from Pettus’ administrator were for four several quarters of a league adjoining Shelburne’s half, and would not embrace the five hundred acres involved in this suit. The Adams deed, which defendants do not claim under, specially, in effect, recognizes Pettus’ previous sale to Fulcher and Taylor of fifteen hundred acres on the lower part of the league, and excludes that fifteen hundred acres. ££I take,” says Judge Story, ££ the principle of law to be clear, that where a person enters into land under a claim of title thereto by a recorded deed, his entry and possession are referred to such title, and he is decreed to have a seizin of the land co-extensive with the boundaries stated in his deed, where there is no open adverse possession of the land so described in any other person.” And so it has been held that the possession of land by a purchaser under a deed of an entire lot is adverse to the rightful owner, though tenant in common with the grantor, because the entry is under an adverse title and not as co-tenant. Freeman on Co-tenancy, §24.

The defendant’s proposition in effect is, that although the other possessors of this Pettus grant held possession of their several tracts by deeds to them, in severalty, and adversely to him, yet that their possession constructively extends over this five hundred acres in controversy of which they never had actual possession, and to which they had no claim, and that under that constructive possession defendant can avail himself of the statute of limitations. This proposition would seem to require no answer.

[Opinion delivered November 22, 1880.]

The other questions raised in the brief do not require discussion. The objections made to the power of attorney to Smith from Hamilton, under which the deed to Ellison was executed, were probably well taken, but the defect was cured by the subsequent power of attorney ratifying Smith’s acts.

We are of opinion that for the reasons indicated the judgment is not supported by the evidence, and ought to be reversed, and we so award.

Bevebsed and bemanded.


source: Caselaw Access Project

author: A. S. Walkee, J.

license: Public Domain

text:
    Stephen Jackson et als. v. E. A. Deslonde et als.
    (Case No. 4157.)
    1. Pleading — Supplemental petition.—-It is not error to overrule exceptions to a supplemental petition where the facts therein alleged are in the nature of a replication to the answer, or the title set up in the answer by the defendant.
    2. Secondary evidence—Laying predicate.— In the predicate made for the admission of secondary evidence, the quantity of preliminary proof is for the judge toying the cause to pass upon, and its sufficiency is largely within his discretion. Unless it be clearly shown that the court erred in so admitting secondary evidence, where there is prima facie proof as to search and inquiry of the proper persons and at the proper places shown in the preliminary .testimony, the act of the judge will not be reversed. See this case for proof held sufficient. White v. Barry, 27 Tex., 50; Wharton on Ev., 141; Bailey v. McMickle, 9 Cal., 430; Diehl v. Ewing, 65 Pa. :St., 326.

      3. Evidence—Declarations oe persons in possession.—Declarations of persons in possession of land, explanatory of the character of their possession, are admissible in evidence. 1 Greenl. Ev., sec. 109; Wharton on Ev., 1156; Abbott’s Trial Ev., 711.
    4. ' Charge oe the court — Presumption.—To instruct the jury, if they “ believe from the evidence that there were in existence, more than thirty years ago, deeds from S. O. Robertson to Niles F. Smith, and from Smith to John Barrington, to the land described in the petition, and you further believe that Barrington claimed said land and held possession thereof, either by himself or by a tenant, under said deeds, and paid taxes on said land, then you are authorized to presume that said deeds were executed by said Robertson and Smith,” is not error. Carver ®. Jackson, 4 Peters, 83; Crane v. Lessee of Morris & Astor, 6 Pet., 610; Beery®. Crain, 6 Wallace, 805.
    5. Possession, prima eacie evidence oe.— Payment of taxes is prima facie evidence of possession. Williams ®. Hillegas, 5 Pa. St., 493.
    6. Asking instructions.— Where it would be proper to give a charge if asked, mere omission of the court to do so is not error.
    7. Stale demand—Charge of the court.— Possession of land with right of possession, and of property, constitutes a title which mere lapse of time cannot destroy; and to charge the jury that, “If Farley, without having been in possession of the land in suit as many as three years, did, on or about the years 1857 or 1858, lose the possession, and if he has not since held the possession of the same, or paid taxes on said land or claimed title thereto until the institution of this suit, but has openly disclaimed having title; and if Barring-ton, claiming the south half of said league No. 3, under deeds from Robertson to Smith and from Smith to Barrington, did, on or about the year 1853, cause said south half to be surveyed and the lines 1 around it marked, and if he, and plaintiffs since his death, have paid taxes thereon, and if, since about the year 1857 or 1858, said land has been in tbe possession of a tenant or tenants notoriously claiming to hold under and for Barrington, then Farley’s bond from Robertson, dated June 37, 1843, and read in evidence, has become a stale demand and barred by lapse of time, and you will find in that case for the plaintiff,” is erroneous.
    8. Practice—Admitting improper evidence.— Where improper evidence has been admitted in the trial of a cause, and it cannot be known that its admission was not injurious to the party complaining, the judgment will be reversed.
    • Appeal from Milam. Tried below before tbe Hon. Spencer Ford.
    August 15, 1876, E. A. Deslonde, Maria D. Deslonde, Louisa Douglass and Eobert Darrington brought an action of trespass to try title against Stephen Jackson and M. Farley, for two thousand two hundred and twenty-two acres of land, “part of a grant of four premium leagues granted by the government of Coahuila and Texas to Sterling 0. Bobertson, and being the lower or south half of premium league Bo. 2, from the mouth of Elm creek, and bounded on the north by the Bios league, on the east by premium league Bo. 1 of said four leagues, on the south by James Beed and Sarah Wilhelm leagues, and on the west by the balance of said premium leagues.”
    The defendant, October 5, 1879, filed amended answer substantially as follows:
    “ And for further answer in this behalf, the defendant M. Farley says that he is the T>ona fide and legal owner of the following described tract of land, to wit: A part of the Sterling C. Bobertson four-league survey, situated on Elm creek, in Milam county, Texas, and described as follows: Beginning in the east line of the James Beed league of land, south nineteen degrees west one thousand one hundred and eighty-two varas from James Beed’s northeast corner; thence north nineteen degrees east to a stake in the northern boundary line of said four-league survey; thence south seventy-one degrees east with said boundary line far enough to inclose one thousand six hundred and eighty-three acres; thence south nineteen degrees west to a stake in the southern boundary line of said four-league survey; thence with said boundary line to the beginning, containing one thousand six hundred and eighty-three acres of land. That on or about the 27th day of January, 1842, S. C. Bobertson executed to Farley & Jewett a bond for title, with power of selection, for a league of land; that on the 12th day of February, 1848, Farley & Jewett, by virtue of said bond, selected the land above described as a part of said league. That on the-day of-, 1855, Farley & Jewett put Thomas Compton in possession of the land as their tenant, to hold for them. That on the-day of-, 1858, Jewett sold his interest in said land to Farley, and Compton continued to hold possession for Farley until the death of Compton in 1862. That at the time of the institution of this suit Stephen Jackson was in possession of said land as tenant for Farley, holding the same for him. All of which defendants are ready to verify,” etc:
    October 27, 1879, plaintiffs filed their first supplemental petition, replying to the matters in the amended answer substantially as follows: “Plaintiffs say that the defendant, M. Farley, claims a part of the land described in plaintiffs5 petition and in defendants’ answer, by virtue of and under a bond for title, or instrument of writing, from Sterling 0. Robertson to II. J. Jewett and M. Farley, which said instrument is dated January, 1812; and plaintiffs also derive their title from Sterling 0. Robertson through deeds from said Robertson to Riles F. Smith, and from Riles F. Smith to John Barrington, the first dated February 8, 1838, and the second February 10, 1840. Plaintiffs say that said instrument of writing from S. C. Robertson to Farley & Jewett was an executory contract in consideration of professional services to be performed by said Farley & Jewett; and plaintiffs say that Farley & Jewett never performed said services, whereby the consideration of said bond has failed; wherefore defendants ought not to recover.”
    Plaintiffs further say that, “ if said Farley & Jewett ever had any right under said bond or deed, then they aver that said claim is now, and was long before the institution of this suit, a stale demand and barred by a lapse of time, and cannot be enforced against these plaintiffs, holding under said Robertson,”
    And plaintiffs further say “ that defendant Farley ought not to maintain said defense under said bond or instrument, because they say that on the -—— day of March, 1859, the said Farley, acting by and through his agent, H. J. Jewett, and the said Jewett, acting for himself and E. S. 0. Robertson, executor and legatee of the estate of S. 0. Robertson, deceased, entered into a new contract in writing, by which the said bond or deed from S. 0. Robertson was canceled, and a new contract substituted in its place, all of which plaintiffs are ready to verify.
    “Plaintiffs further say that on the 20th day of April, 1853, their ancestor, John Barrington, proceeded to more fully designate and mark out the half league conveyed by S. C. Eobertson to N. F. Smith, and by 2L F. Smith to John Barrington, and to that end employed the services of George Green, a practical surveyor of Milam county, who, on said day, surveyed and more fully designated the said half league as described in plaintiffs’ amended petition, by making lines and corners, which designation and survey has ever since been respected and admitted to be correct by said E. S. C. Eobertson, executor, legatee, etc.”

      To this supplemental petition defendants excepted generally and specially.
    The exceptions of defendants were overruled.
    Pending the suit, Annie Lindsay, Thos. Lindsay and Mary Whittington, as heirs of Compton, intervened, claiming six hundred and forty acres, part of the land in controversy. Before the trial plaintiffs admitted the rights of the interveners to the extent of one hundred acres.
    Verdict and judgment were for the plaintiffs, and motion for new trial being overruled, defendants appealed.

      B.amman dé Adams, for appellants.

      II. D..Prendergast and P. P. Garrett, for appellees.
   A. S. Walkee, J.

There are sixty-three assignments of error, many of which are subdivided into several points.

But a small number are noticed in the brief of the appellants.

Those discussed are as follows, and will only be noticed:

2d. The court erred in overruling defendants’ demurrer to plaintiffs’ first supplemental petition.

3d. In overruling defendants’ objections to the sufficiency of the affidavits of Maria B. Beslonde and H. B. Prendergast, of the loss of deeds from Eobertson to Smith and from Smith to Barrington.

52d. The court erred in overruling defendants’ objections to the testimony of E. S. C. Eobertson, of a pretended compromise between said Eobertson and Henry J. Jewett and the defendant M. Farley, of the title to the one thousand six hundred and eighty-three acres of land on Elm. creek, selected by Farley and Jewett.

26th, 29th, 32d, 38th and 51st. The testimony of the witnesses Grout, Ohaudoin, Prendergast, Shirley and Reece was irrelevant, incompetent, and calculated to mislead and prejudice the jury; and the court erred in admitting it over defendants’ objections.

55tb, 56th and 59th relate to instructions given by the court to the jury.

The alleged errors so discussed will be noticed. In connection with each will be given a sufficiently full statement from the record to show the facts and points of law upon which the opinion is formed.

1. The facts alleged in the supplemental petition, being in replication to the answer, or to the title set up in the answer, by the defendants, was not improperly pleaded. It may have been necessary to the validity of the plaintiffs’ title that the alleged title of the defendants be avoided.

There was no error in overruling the exceptions to the said supplemental petition. At most it was immaterial.

2. The predicate made for the admission of secondary evidence of the deeds from the grantee to Hiles F. Smith, and from him to John Barrington, ancestor of plaintiffs, is as follows:

“ Before me, the undersigned authority, personally came Maria B. Beslonde, one of the plaintiffs in the above entitled cause, and, after being duly sworn, on oath says that the original deed from S. C. Robertson to Hiles F. Smith, and the deed from Hiles F. Smith to John Barrington, for the land in controversy, are lost; and affiant says that she has made diligent search for said deeds, and affiant knows that the deeds are not in the possession of any of the plaintiffs, Maria B. Beslonde, Louisa Bouglass or Robert Barring-ton. And affiant says that both of said deeds, as she is informed and believes, are recorded in Milam county, Texas, and the deed from Biles F. Smith to John Darrington is recorded in Bobertson county.

“Marla Darrington Deslonde.”

“ Subscribed and sxvorn to before me at the city of Bew Orleans, Louisiana, on the 6th day of April, A. D. 1877. [seal] “ Bobert J. Kek,

“ United States Commissioner for Fifth District of Louisiana, and Fifth Judicial Circuit, United States.”

“Also, before me, the undersigned authority, personally came H. D. Prendergast, attorney for plaintiffs in the above entitled cause, and, after being duly sworn, on oath says that the original deed from Sterling C. Bobertson to Biles F. Smith, for the land in controversy, dated February 8, 1838, and the original deed from said Smith to John Darrington, dated February 10, 1840, for the land described in plaintiffs’ petition, are lost; and affiant says that he has made diligent search for said deeds, by applying to the plaintiffs, and is informed by the plaintiffs that they have not the deeds, and one of the plaintiffs, Mrs. Maria D. Deslonde, has made oath before a United States commissioner that she has not the said deeds, and she knows that the other plaintiffs have not got them, and that they are lost, which said affidavit is herewith exhibited to the court; and affiant says that he has made diligent search for said deeds in all places where he thought it possible they could be found. He has applied to the representatives of J. De Cordova, of A. F. James and Darnell, as far he could find them, for information as to said deeds. Said parties were the agents of John Darrington at different times in Texas, and are all now dead. And affiant further says that he has offered to the administrator of Cordova’s estate a reward of $50 if he would find said deed. Affiant says that the deeds above described were recorded in Milam county — the first one, as affiant believes, about the latter part of the year 1838, and the other in 1847. And affiant says that the deed from Biles F. Smith to John Darrington is also recorded in Bobertson county, and a certified copy is herewith shown to the court.”

Without extended discussion it would seem that Prendergast’s affidavit was a compliance in form with the rule given in W hite v. Barry, 27 Tex., 50, and there held sufficient. The quantity of preliminary proof to admit the secondary evidence is for the judge below. In the case cited proof of inquiry of a trustee and of the beneficiary in the deed, and that they had stated to the attorney making the inquiries that they did not know where it was, was held sufficient to admit depositions proving execution and contents of the deed of trust. The affidavits of the trustee, nor of the beneficiary to whom the deed had been delivered, were had.

In this case at bar, the attorney for plaintiff testified to inquiry of the plaintiffs, the heirs of Barrington (supplemented by the irregular affidavit of one of the plaintiffs to same inquiry), and that J. Be Cordova, in whose hands the deed was last seen, was dead, and search and inquiry of his administrator, as well as inquiry from others named who had been Barrington’s agents.

The sufficiency of the preliminary proofs is much in the discretion of the judge trying the case. Wharton on Ev., pp. 141, 142, 147; Bailey v. McMickle, 9 Cal., 430. Unless it be clearly shown that the court erred in so admitting the secondary evidence where there is proof prima faeie as to search and inquiry of the proper persons, and at the proper places, as shown by the preliminary testimony, the act of the judge will not be revised. The proof must have satisfied the court that it was out of the power of plaintiffs to have produced the alleged lost documents, and their prior existence and genuineness, as prerequisite to secondary evidence of their contents. Wharton on Ev., sec. 141.

It must be remembered that the affidavit of Prendergast was principally to the fact of inquiry and search, and inability to procure the original. The execution and contents were sought to be proven otherwise, and to some extent by circumstantial evidence.

It is not to be expected that perfect proof of a first step in the technical, correct order of the introduction of the testimony can be made before the second shall be taken. Diehl v. Ewing, 65 Pa. St., 326.

“ All competent evidence in such case should be received when offered, whether in logical sequence or not, especially if followed by what would make out a complete case, if believed. When the testimony is in, it is the duty of the judge to inform the jury what is to be extracted from the body of it, in order to make out a good and valid case in law, and what effect a failure to do so would have. A party must begin his proof somewhere; and where, is less important, a great deal, than its completeness. A judge will look at the latter with great care as being of the very essence of the contest, and at the former as a desirable result rather than an essential one.” 65 Pa. St., 326, cited Wharton on Ev., 142, note.

The testimony, taken in connection with the proof of inability to obtain the originals, certainly was testimony sufficient to submit the issue whether proven, to the jury as to execution and contents.

There was much testimony, chiefly circumstantial, to the existence and contents of the deeds, and the locality of the land described. If not conclusive, it is strongly persuasive, and, supported by a verdict, will be considered sufficient.

3. As to the testimony of Grout, Chaudoin, Shirley, Prendergast and Eeece. This testimony related to the location of the land, and to its possession by Compton from 1855 until his death in 1863, and by his family subsequently, and of Jackson’s dealings with the land, he having married Compton’s widow. The testimony is as follows (substantially) :

Witness Crout testified: “I got acquainted with Mrs. Compton in 1866 or 1867, then living on the land in litigation ; she died there in 1869; she said she and her husband settled there as the tenants of M. Farley, but at the time I knew her she said she was holding the land for Barrington; that Barrington was to give them one hundred acres of the land to hold it for him; that when she and her husband found Farley could not make title, they ceased to hold under him, and then wrote to Barrington, who agreed to give one hundred acres,” etc.

N. G-. Chaudoin testified: “ I know the Barrington land and some of its lines; live in three hundred yards of it; knew Thomas Compton; he went on the land in Becember, 1855, and said M. Farley put him there; that Farley was to let him have land there. .In 1857 Compton told me he called upon Farley for a deed to the land, and Farley could not make the deed, and I cursed him out of mv house and off my land, and wrote to Barrington; Compton died on the land in 1863; his widow and children remained; she died there in 1869; she always said she was living on the Barrington half league and holding it for Barrington; she married defendant Jackson in March, 1868; I rented land from her in 1868 and paid rent to her by direction of Jackson.”

L. B. Shirley testified: “I know the Barrington half league; have known it twenty-five years; it was shown to me by Compton about twenty-four years ago; Compton died in 1863; his -widow lived there until her death in 1869; when Compton first settled on the land, he told me he went there for Farley, and was holding for him; I passed his house frequently and talked with him; about eight months after he went there, Compton told me he was dissatisfied with Farley’s title; he said he wrote to Barrington and had an answer, and was then holding under Barrington; C. said he was holding for B.; it was generally known that C. was holding the land for B.; Compton’s family remained there and held under Barrington; I know Jackson; he got possession by marrying Compton’s widow; never heard of Farley claiming the land after Compton ceased holding for him.”

Frendergast testified: “I had a conversation with defendant Jackson at Calvert in winter of 1874 and 1875 or of 1875 and 1876, about the Barrington land on Elm creek, in Milam county, Texas. He asked me if the land was for sale, and what it could be bought for, and if I was agent for it; I told him I was, and he asked me if I knew that Farley was claiming the land. This was the first I heard of Farley’s claim.”.

O. M. Eeece testified: In my house in Milam county, in 1875, Jackson told me that Annie Lindsay, one of the intervenors, had acted so badly that he could not stand it, and he ordered her off the place where they had lived on Elm creek. He had told her if she did not leave he would kick her off.”

It will be seen that the testimony of Grout, Chaudoin and Shirley was to the material fact of possession of the land by Compton, and explaining his tenure. Such declarations by a tenant in possession are always admissible. 1 Greenl. Ev., sec. 109, and authorities; Wharton on Ev., 1156; Abbott, Trial Ev., p. 711. The testimony also was pertinent to establish the location of what was called the Barrington land.

Prendergast’s testimony was admissible against Jackson to show his dealing with witness about it, and with other testimony on the subject, in his repudiating the title he entered under and his subsequent assertion of claim under Earley.

Eeece’s testimony was introduced by the intervenors who are not before this court on appeal. Ho appeal was taken against them, nor any assignment of error made against them.

The assignments of error based on the testimony of these witnesses are not well taken.

4. The instructions complained of.

That noted in fifty-fifth assignment is as follows: “ If the jury believe from the evidence that there were in existence, more than thirty years ago, deeds from S. C. Eobertson to Hiles F. Smith, and from Smith to John Barrington, to the land described in the petition, and you further believe that Barrington claimed said land and held possession thereof, either by himself or by a tenant, under said deeds, and paid taxes on said land, then you are authorized to presume that said deeds were executed by said Eobertson and Smith.” Objections: (1) There is no evidence of the existence of such deeds more than thirty years ago; and (2) It is vague, calculated to mislead the jury as to the identity of the land described in the deeds; the time and duration of possession, and when taxes were paid, etc.

The transcript from Eobertson county of the deed from Smith to Barrington showed the date of that deed to be in 1840; it recited and referred to Eobertson’s deed to Smith as of date two years earlier. The recitals were evidence when coupled with the testimony of possession, etc. Carver v. Jackson, 4 Pet., 83; Crane v. Lessee of Morris & Astor, 6 Pet., 610; Deery v. Crain, 6 Wall., 805. The original deeds were in Be Cordova’s possession in 1853, and then shown to surveyor, Green; the deed to Barrington was followed at once by payment of taxes. The deeds, or such as those described, were both duly recorded in Milam county. There is evidence of actual possession under the deeds by Barrington in 1858. Payment of taxes has been held prima facie evidence of possession. Wharton on Ev., sec. 733; Williams v. Hillegas, 5 Pa. St., 492.

This testimony authorized an instruction on the subject; nor is that given erroneous in its terms; nor misleading in reference to the matters urged by defendants in the exceptions taken.

The complaint in the fifty-sixth assignment is that the court charged :

“If you believe that Barrington in his life-time claimed the land described in the petition, and that E. S. C. Eobertson, who took the property of S. C. Eobertson under the provisions of his will read in evidence, knew of such claim, and, so knowing, has acquiesced in it for a great number of years, then you are authorized to presume that the title passed out of Eobertson to Barrington by proper conveyance.”

Objected to, because the acts of Eobertson with Barring-ton subsequent to Eobertson’s transfer to Farley & Jewett were allowed to affect Farley’s right in defense.

This instruction was given with reference to the presumption which might be drawn by the jury from the testimony, of a transfer from Eobertson down to Barrington. It devolved upon plaintiffs to show title. The land was granted to Eobertson, and as against him, and for the purpose of marking out title, the testimony was tendered, and the instruction given. While the instruction is liable to criticism, because vague and indefinite, yet it was not of itself injurious to defendants. Had the defendants asked additional instruction calling attention to what, if any, effect the dealings of Eobertson with Jewett & Farley might naturally have produced upon the conduct of Eobertson towards the land, as a reason for not asserting ownership, such instruction should have been given. The mere omission to give it was not error.

Further error is complained of in the charge,—fifty-ninth assignment. The objectionable charge is as follows:

“ If Farley, without having been in possession of the land in suit as many as three years, did, on or about the years 1857 or 1858, lose the possession, and if he has not since held the possession of the same, or paid taxes on said land or claimed title thereto until the institution of this suit, but has openly disclaimed having title; and if Barrington, claiming the south half of said league Ho. 2, under deeds from Eobertson to Smith, and from Smith to Barrington, did, on or about the year 1853, cause said south half to be surveyed and the lines around it marked; and if he,and plaintiff since his death, have paid taxes thereon, and if, since about the year 1857 or 1858, said land has been in the possession of a tenant or tenants, notoriously claiming to hold under and for Barrington, then Farley’s bond from Eobertson, dated January 27, 1842, and -read in evidence, has become a stale demand and barred bjr lapse of time, and you will find in that case for the plaintiff.”

The title bond referred to bore date January 27,1842, and made by Eobertson, the grantee, to Farley & Jewett, agreeing to sell and convey, etc. It recited its consideration, professional services in the case of Sam Houston, President, etc., v. S. C. Robertson, empresario, rendered by Massillon Farley and Henry J. Jewett, as counsel in the case aforesaid.” This was a valuable consideration.

It stipulated that from certain lands Farley & Jewett might select the agreed quantity. This selection was made February 12, 1848, and the survey of it recorded in the proper county. Compton was placed by the vendees in the possession as their tenant. The bond obligated Robertson, upon such selection, “ to make the conveyance to the land.” Farley & Jewett had, as result of these facts, “ the actual possession, the right of possession, and the right of property ” in this land. These constituted perfect title. 2 Kent, 373; 2 Blackstone, 195. In Robertson remained but the naked legal title; he was a mere trustee for the owners. Farley & Jewett could enforce a decree against Robertson and maintain trespass to try title against a stranger. In our courts there is equal protection for an estate, whatever be the evidence of it. Equities make rights, and in our courts are dealt with as facts, not as claims. This estate could only be destroyed by its owners; or by the proving up of title under the provisions of the laws of limitation; or by the grantor resuming possession and conveying to a tona fide purchaser. When asserted by one in possession, mere lapse of time would not destroy it.

Rot regarding Robertson’s older deed to Smith, under which plaintiffs claim, the status of the Farley & Jewett title is analogous to that discussed in Reed v. West, 48 Tex., 248: “ If Reed had gone into possession, his equitable title would have protected him and entitled him to possession. If, on the other hand, West had repudiated the trust by selling the entire tract, or by holding possession, claiming for himself alone, then limitations would have commenced to run against plaintiffs’ claim for equitable relief. Until some act indicative of an intention to hold adversely, limitations would not commence.”

Independent of the elder title plaintiffs have not shown such destruction of defendants’ estate in the land as would render the charge proper.

Besides, the acts done in 1853, the survey, the payment of ■taxes, the continued subsequent assertion of title, the disclaimer by Farley & Jewett, the acquisition by plaintiffs of possession in 1858, were, so far as they were the acts of plaintiffs and their ancestor, referable to their older title; they were in- no way a repudiation of the defendants’ contract with Eobertson.

The charge proceeds to direct the ju-ry^ upon finding the facts from which would result the staleness of the bond, they should find for the plaintiffs. It does not appear that the defendants asserted title by limitations, oras bona fide purchasers. Nor that such rights were, on the trial, asserted against them. The real defense consisted in combatting the evidence offered by the plaintiffs, and in an attempt to show that the land-included in the alleged deed by Eobertson to Smith did not to any material extent conflict with that selected by Farley & Jewett claimed by defendants.

The plaintiffs’ title could receive no strength from the fact, if it were found, that the Farley &. Jewett title had been abandoned.

In submitting as a basis of recovery the facts showing the invalidity of the Farley & Jewett title as against Eobertson, even as aiding as a circumstance the1 testimony to the exist-, ence of the Smith title, the court was giving an undue prominence to the defects of the defendants’ title. This charge was,.therefore, improperly given.

5. There remains the additional assignment (52d) relating to the admission in evidence over objection of a contract bebetweeu S. C. Eobertson and the defendant Farley (or Jewett & Farley).

E. O. S. Eobertson’s testimony is in substance by deposition : “ My father made a contract with Henry J. Jewett and M. Farley, for and in consideration of their professional services in a suit then pending, of Sam Houston v. Sterling C. Eobertson, empresario, etc., to convey to them one league of land. -By the terms of the contract the said Farley & Jewett were' privileged to select the whole league, or a less quantity, not less than one-quarter of a league, out of the four-league block of land on Elm creel?, and the balance to make up one league, to be selected -out of one of said Eobertson’s leagues, on String prairie, in Burleson county. Under the above contract Farley & Jewett did select about one thousand six hundred and eighty-three acres out of the four-league block on Elm. creek, beginning at a southwestern corner of said Robertson’s four-league block of land on Elm creek, at a point bearing south nineteen degrees west from James Reed’s northeast corner of a league survey, and in James Reed’s east line, marked A on annexed plot Mo. 2; thence north nineteen degrees east, to northeast boundary line of said Robertson’s four-league survey; thence south seventy-one degrees east far enough, running down in the same direction with Elm creek, to inclose one thousand six hundred and eighty-three, acres; thence south nineteen degrees west to the southwest boundary line of said foür-leagué survey, and with the same to the beginning. They also selected two thousand seven hundred acres in Burleson county. As the consideration for which my father had agreed to convey the above described land had failed, I refused to make title. On or about the 2d day of October, 1851, Farley & Jewett brought suit against me in the probate court of Milam county for a decree of title, to which I pleaded want of consideration, etc. This suit was continued from term to term without prosecution— being ready myself to answer further in the matter — until the 3d day of March, 1859, when I entered into the following agreement with Farley & Jewett, in words as follows, to wit: This agreement, made and entered into this 13th day of March, 1859, by and between E. Sterling 0. Robertson, of Bell county, of the first part, and Massillon Farley, of Bell county, Texas, and Henry J. Jewett, of Leon county, all of the state of Texas, of the second part, witnesseth: That for the consideration hereinafter stated, the said party of the first part doth hereby agree and bind himself, his heirs, executors and administrators, to make and deliver to said party of the second part a good and valid deed for one-half league of land, situated in Burleson county, Texas, on String prairie, said league being one of the premium or selected leagues of Sterling C. Robertson, deceased, and said league, so soon as practicable, to be divided into two equal parts, as near as may be of the same value, having regard to quantity and quality of land. And said party of the first part also agrees to make the deed for the aforesaid land in this manner: A deed to one-fourth of the land, when divided, to Henry J. Jewett, and for the other fourth a deed to Massillon Farley, said deed being more fully identified as the same on which said Farley & Jewett made a selection of land, by virtue of a certain deed to them executed by the late Sterling C. Eobertson, and recorded in Burleson county for a league of land, reference to which may be had. And the said parties of the second part, in consideration of the premises, do hereby bind themselves, their heirs, executors and administrators, to release and forever acquit and discharge the estate of Sterling C. Eobertson, deceased; also in like manner to discharge and release said party of the first part from all claim, demand or lien which said Farley & Jewett may have or derive from a deed for one league of land, executed and delivered to them by said Sterling 0. Eobertson, deceased, in consideration of professional services rendered by said parties of the second part in the matter of his suit against the republic of Texas, .for the recovery of land to which he was entitled as empresario, said deed being recorded in Burleson county. And this agreement shall op: erate to discharge said party of the first part from all claim or lien held by said Farley & Jewett, by virtue of the deed aforesaid, upon the execution and delivery of deeds for the one-half league of land aforesaid as hereinbefore stated. In testimony whereof, the parties of the first part and of the second part have hereto set their hands and scrolls for seals, this the day and date above written. In duplicate.

(Signed) “ Massillon Farley, [seal]

“By his Attorney, Henry J. Jewett. “Henry’J. Jewett. . [seal]'

“ E. Sterling C. Eobertson. [seal]

“ Signed, sealed and delivered in presence of W. Y. Me-. Farland and W. H. White.”

In connection.with, this testimony, J. M. Henderson, fgr defendant, testified: “In 1859 or 1860 Farley told me he did not have title to the land and could not make me a deed to it.”

W. Y. Heffley testified that about 1859 “ he had a conversation with Farley about buying some of this land on Elm creek, and he said he had given up all claim to it; that he had taken land in another place. I asked him what he would do with Compton, and he replied that Darrington would take care of him and give him a home.”

It had been proven that Darrington had paid the taxes on the land for 1851, 1852 and 1853, and ever since, except for nineteen years. Payment of taxes has been held prima facie proof of possession. Williams v. Hillegas, 5 Pa. St., 492. The land was granted to S. C. Robertson, and it was shown that Compton had been placed by Farley on the land as tenant in 1855, and that in 1857 Compton had repudiated the tenancy, and from that time up to the marriage of Jackson with the widow of Compton, Compton and his widow had occupied the land under Darrington. Compton died in 1863, and his widow and Jackson intermarried in 1868. The testimony as to the locality of the land, as described by the deed, was conflicting.

From the entire testimony it cannot be said that the contract of rescission contained in the testimony of E, S. C. Robertson was necessarily an important fact in the case. Its importance, however, was magnified in the erroneous charge just discussed. Still as the testimony appears to have been secondary, and was objected to as such, its admission is presented directly for revision.

In Eborn v. Zimpelman, 47 Tex., 503, the case was reversed upon the improper admission of testimony to the genuineness of certain promissory notes bearing date in 1846, when the case was decided upon the genuineness of a document of date 1871; the court holding: “As wre cannot say that the improper evidence did not operate to plaintiff’s prejudice, this error entitles plaintiff to a reversal.”

To this assignment appellee replies that the execution of this.contract of rescission was not in issue by a denial under oath. Such condition would obviate the necessity of proving its execution, it having been pleaded, but does not dispense with its production. Matossy v. Frosh, 9 Tex., 613. It was error to admit the copy. With the charge upon the importance of the facts avoiding defendants’ title, it cannot be known that this error was not injurious to defendants.

[Opinion delivered November 29, 1880.]

For the erroneous instruction discussed, and the admission of the secondary evidence, the judgment should be reversed.

Reversed and. remanded.