
    AUSTIN TERM,
    1883.
    E. G. Hanrick v. John Cavanaugh.
    1. Distinguished.— This case distinguished from Hanrick v. Jackson, 55 Tex., 17, and the doctrine announced that if what purports to be a grant from the government is a forgery, it having never in fact been issued by the officer by whom it purports to have been issued, or if by subsequent alterations it has been made apparently to confer rights not conferred by it at the time it was issued, then it is absolutely void, and is subject to attack by any one against whom it is sought to be used.
    
      2. Evidence.— See statement and opinion for facts held properly admitted in evidence as circumstances pertinent on an issue of forgery.
    3. Commissioner of the general land office.—The commissioner of the general land office has no authority to create or annul titles to land by ex parte orders to surveyors.
    4. Civil law.— See opinion for the doctrine of the civil law, as announced by Partidas and Escriche, with regard to erasures, obliterations, interlineations and corrections, and that quantities and dates be expressed in letters and not in numbers and figures, under penalty of the nullity of the instrument.
    5. Pact case.— See opinion and statement for facts held sufficient to authorize an affirmance of a judgment declaring on verdict the forgery of a grant.
    Appeal from Williamson. Tried below before the Hon. W. A. Blackburn.
    This was a suit of trespass to try title, in ordinary form, by appellant.
    Appellee defended on several pleas, by original and amended answer:
    1. Demurrer.
    2. General denial and not guilty.
    3. Limitation under the three, five and ten years.
    4. Boundary; and
    5. Improvements in good faith.
    The assignments of error were as follows:
    1. The court erred as set out in the several bills of exception, Uos. 1, 2, 3, 4, 5, 6, 7, 8 and 9.
    
      2. The court erred in refusing to grant a new trial, for the several reasons set out in the motion therefor.
    3. The court erred in overruling plaintiff’s motion to render judgment in his favor non obstante veredicto.
    
    4. The court erred in its charge, in chief, as set out in bill 8.
    5. The court erred in admitting evidence to the jury, over the objections of plaintiff, as set out in bills 1, 2 and 13.
    6. The court erred in excluding evidence, as shown in bill 4.
    7. The court erred in refusing charges asked by plaintiff’s bill.
    8. The court erred in giving charges asked by defendant. Bill 5, and combined bill 5, 6, 7 and 8.
    9. The court erred in modifying and changing charges asked by plaintiff. Bill 5, 6, 7, 8.
    11. The verdict of the jury in general, and specially on special issues 1 and 2, are without evidence, against evidence, and there is no evidence to sustain, support or excuse the verdict and verdicts on special issues.
    12. The verdict of the jury generally, and on the special issues 1 and 2, are without evidence, against evidence, without law, and against law.
    13. The court erred in not withdrawing from the jury the evidence mentioned in bills 2 and 3, for the reasons mentioned in motion therefor.
    The plaintiff introduced the following evidence:
    1. A certified, translated copy of the original grant for eleven leagues of land granted by the government of Goahuila and Texas, to Rafael de Aguirre, dated on the 22d day of October, 1833, and signed by Luke Lesassier, alcalde of the appropriate jurisdiction, the assisting witnesses being Robert Peebles and C. C. Givens.
    The grant consisted of the usual parts: 1. Application for concession. 2. Concession. 3. Application for the land. 4. Reference to empresarios. 5. Consent of empresarios. 6. Selection of the land. 7. Survey. 8. Return of field notes; and 9. Extension of final title.
    2. Testimonio of power of attorney from Rafael de Aguirre to. Samuel May Williams to sell the granted land, dated the 5th day of May, 1832, executed before Juan Gonzales, with assisting witnesses Jose Harzo Ortez and J. Ml. Moral, and which had been duly recorded in the counties of Falls, Williamson and McLennan.
    3. Original deed from Rafael de Aguirre, by his attorney in fact, Samuel May Williams, dated May 1, 1838, for the eleven leagues of land, to Asa P. Ufford, which deed had been duly recorded in Falls, and Williamson counties.
    
      To the three foregoing instruments defendant interposed an affidavit of forgery, under art. 3716, Pasch. Dig.
    The court passed on the second and third instruments, and charged the jury that they were valid and conveyed title; but as to the original title, he permitted the attack on it to stand, and submitted special issues to the jury on that subject, viz.:
    Plaintiff introduced Governor E. M. Pease, who testified as follows:
    1. Is sixty-eight years old.
    2. Came to Texas in 1835.
    4. Has held various offices.
    5. Knew Robert Peebles and C. C. Givens; became acquainted with them in 1835. Did not knoAV Luke Lesassier.
    6. KneAV the individual handwriting of Robert Peebles and C. C. Givens as early as the year 1835, from having seen each of them frequently Avrite in the year 1835, and from having copied much of the handwriting of each of them in 1835 and 1836.
    7. I knew the handwriting of Luke Lesassier from having seen it both officially, as the alcalde of the municipality of Austin, in the court records at San Felipe, . . . and from having often copied his writings and signatures from said records, in the year 1835 and subsequent years.
    8. It is his impression that he has examined, at the general land office at Austin, the original title to Rafael de Aguirre for eleven leagues of land, dated 22d of October, 1833, several times, but had given the same careful examination on the day he was testifying.
    9. He finds Lesassier’s signature to the stamp on the first page of said title; also on the reverse sides of the third and fourth leaves, and below it, the signature of Robert Peebles as assisting witness; also finds signature of Lesassier on the sixth leaf at the end of the final title, and below it the signatures of Robert Peebles and C. C. Givens, as assisting Avitnesses, all of which signatures he believes to be those of the several persons who purport to have made them.
    10; He believes from his knowledge of the handwriting of Lesassier, Robert Peebles and C. C. Givens, that the several signatures of the one and the other of said persons, wherever they occur in said title, are their genuine signatures, and were made by them respectively.
    11. He has examined the body of said title, and the notes of emendation at the foot thereof, and believes the body of the title and the notes of emendation are in the handwriting of Samuel M. Williams, and this belief is based on his knowledge of the handwriting of said Williams, derived from having often seen him write and copying the same.
    12. He has examined the signature of L. Lesassier, the alcalde by whom said original title purports to have been issued, and also the signatures of Robert Peebles and C. C. Givens, the assisting witnesses, all at the foot and conclusion of said title, and believes said signatures are the genuine signatures of the parties by whom they purport to have been made, and were made by them respectively; and this belief is founded on the knowledge of their handwriting before stated.
    
      Cross-examined: He believes the handwriting in the face of said title to be that of Samuel M. Williams. He means to say that all of the face of said title and notes of emendation — all of it — except the signatures thereto, was "written by Samuel M. Williams. The words “catorce,” and “Rafael Aguirre,” and “Arroya San Javiel,” seem to have been written over erasures. The foot-notes note the interlineation in the face of said title, viz.: “ 2 de Mayo po po año,” and “Cow Bayou,” and also note that the words “catorce,” “Rafael Aguirre,” and “Arroya San Javiel,” are emendado, or amended.
    4. Plaintiff then introduced a deed for the land from Asa P. Ufford to Joseph Ufford, dated the 11th day of August, 1851.
    5. Also a deed from Joseph Ufford to Edward Hanrick for the same land, dated the 9th day of January, 1855, and recorded the 11th day of February, 1859, in Williamson county.
    6. Plaintiff then proved that he was the heir of Edward Hanrick.
    7. He then proved by surveyors that the tract of land sued for was within the boundary lines of the Rafael de Aguirre grant, dated October 22, 1833.
    Defendant offered in evidence:
    1. A certified, translated copy of the eleven-league grant to Miguel Rabago, consisting of: 1. Application to purchase eleven leagues of land on the Trinity river, dated November 23, 1828. 2. Concession, dated December 2, 1828. 3. Application for the land by Samuel M. Williams, designating the same on the right bank of the Brazos river, adjoining another tract of the same description for Don Rafael de Aguirre, within the colony of Messrs. Austin & Williams. 4. Consent of the empresarios. 5. Reference to the surveyor. 6. Field notes of Carbajal, who, among other descriptive calls, returns this tract as “ bounded on the south by a tract which has been surveyed for Don Rafael de Aguirre; dated January 11, 1834.” 7. Order for title, dated same date as above. 8. Final title, in which the land is described, “the boundaries of which are set forth in the plat and field notes returned by the surveyor, Jose Maria Carbajal.”
    
      2. A like copy of an eleven-league grant issued to Rafael de Aguirre and situated on the Brazos river. It contains: 1. Application of Samuel M. Williams, as attorney of Jose Maria de Aguirre, Rafael de Aguirre and Tomas Vega for a concession of eleven leagues each, to his constituents, dated city of Austin, October 14, 1830- 2. Copy of the concession that was granted as prayed for. 3. Application for the eleven leagues to Rafael de Aguirre by Samuel M. Williams, dated October 4, 1833, to be located on the Brazos river. 4. Reference to empresarios, Austin & Williams, October 5, 1833. 5. Consent of Williams to the location, October 5, 1833. 6. Return of surveyor, F. W. Johnson, with field notes of the land on the west bank of the Brazos river, giving metes and bounds, commencing a short distance below where the Bosque river empties into the Brazos. 7. Appointment of commissioner to issue title, May 2,1832. 8. Final title to the land surveyed for Rafael de Aguirre, dated October 4, 1833, and signed by Luke Lesassier, the officer, and his witnesses of assistance, Robert Peebles and C. C. G-ivens.
    3. A certified copy of a like title issued to Tomas de la Vega, containing all the preliminary papers as those just mentioned in the Aguirre title, except that it contains a testimonio of the concession, instead of a copy of it.
    4. W. C. Walsh testified: I am commissioner of the general land office of Texas; the book that will be read from is an archive in said office.
    5. X. B. De Bray testified: I am Spanish translator in the general land office. Book 29, from which I will read, belongs to my department, and is an archive of the office. I am shown a photographic copy of the original title for eleven leagues of land to Rafael de Aguirre, dated October 22, 1833. It is a true and correct reproduction of said original title, which is archived in this book 29.
    6. Said photographic copy was then read in evidence, and was inserted in transcript.
    7. Witness being still on the stand, continued: I find in this book of titles (29) the following chain of title, from Perfecto Valdez to Mrs. Jane McManus:
    1. A power of attorney from Perfecto Valdez to Emanuel Bangs and Isaac Donoho, executed at the farm of Isidro Palomas, before an alternate commissioner of police, on the 29th of July, 1830, to sell the rights he had acquired from the government by purchase.
    2. Substitution by Isaac Donoho, who represented the person and interests of Perfecto Valdez at the city of San Felipe, on the 14th day of ¡November, 1832, before Alcalde Horatio Chrisman, of Samuel Sawyer, to represent the constituent, Perfecto Valdez, in all things that he and Bangs had been authorized to do.
    3. Transfer in sale from the said Donoho, who acted in the same capacity as last stated, to Samuel Sawyer, dated on the 15th day of ¡November, 1832, of all the rights to land purchased by Perfecto Valdez from the government. Passed before the mayor, etc., Horatio Chrisman.
    4. Transfer by Samuel Sawyer before Luke Lesassier, mayor, etc., on the 8th day of February, 1833, of all his rights, acquired by purchase from Perfecto Valdez by his attorney, Isaac Donoho, to Mrs. Jane McManus.
    2. Substitution by Samuel Sawyer of R. O. W. McManus, to exercise the powers vested in said Sawyer by the substitution of Sawyer by Donoho, to act for Perfecto Valdez. Substitution as above passed on the 14th day of February, 1833, before Luke Lesassier, mayor, etc.
    8. Witness being still on the stand, read from said book 29:
    1. The concession to Perfecto Valdez for eleven leagues of land, dated the 13th day of July, 1830.
    2. The consent of Samuel M. Williams for himself and partner, Austin, to R. O. W. McManus, attorney for Perfecto Valdez, that the eleven leagues for Valdez might be located in their colony, dated the 8th day of February, 1833.
    3. The final title to Rafael de Aguirre, heretofore set out, and of which photographic copy was contained in transcript.
    4. English field notes of survey for Mrs. Jane McManus, made by Wm. Moore, on the 1st day of May, 1833, beginning at northwest corner of S. F. Austin’s Tehuacana survey, a stake in east bank of Brazos, a little below the mouth of the Bosque, thence running course and distance for quantity.
    9. Sketch of map from the general land office was then introduced.
    10. The translations from Escriche, made by witness De Bray, were introduced in evidence, and will be found embodied in the opinion, except what is here stated.
    De Bray testified: The body of the final title to Aguirre, exhibited also to the jury, appears to be in one handwriting, except the notes of emendation; don’t know the handwriting; the last of the notes of emendation is unlike the rest of the document, and the characters are smaller; I have read much of civil law, and, as laid down by Escriche, under the head Salaor. It requires, when a note of emendation is made in the body of an instrument made before a public officer, that the words stricken out, as well as those inserted, shall both be inserted, on penalty of the invalidity of the instrument ; this was not done in noting in the Aguirre final act of possession ; notarial acts were rendered invalid by scratching out words, as mode of alteration; the changes observed in the final title of Aguirre, before witnesses, are in heavier strokes and darker ink than the body of the paper. The photographic copy used by the witness on the stand, except as to the color of the paper, is a reproduction of the appearance of the printing as it appears in the final title to Aguirre; the papers forming that title are bound in a book with other titles; the map in the body of the title to Aguirre in the archive book has marked on its face in pencil, in German hand, “ Perfecto Valdez.” The paper on which the final title is written is shorter, narrower and of different texture from the other papers of the title. On eighth line of first page of final title catorce (fourteen) appears to have been written over trice (thirteen). In the same line Junio appears to have been changed from Julio, explaining the process. Over same line is interlined “ y % de Mayo del popo ano.” In tenth line of same page of final title the words “ Rafael de Aguirre ” appear to have been written over “ Perfecto Valdez.” The process of change was pointed out by the witness in detail. In the granting part of the final title, the grantee was named Perfecto Valdez, who in tenth line seems originally to have been written instead of Rafael de Aguirre, to which it was changed.
    Some changes are on same page, altering date and mark on second page of final title. In the eighth line the words “ Arroyo Ja,” and the “ viel” in ninth line, appear to have been written over other words imperfectly erased. The “A ” in Arroyo seems to have been originally an “ R ” and changed. There is imperfectly erased part of the letter “B” in connection with the letter “J” and other change. The words “Rio de los Brazos” may have been there. Also interlined is the phrase “ y el Cow Bayou.” The words changed on both pages are scratched with a sharp instrument, and not barred off. The words and manner of the emendation were presented in the photograph for actual inspection by the supreme court.
    Defendant then introduced another sketch map from the general land office. It was a sketch of the locality of the Tomas de la Vega, Mrs. McManus (Perfecto Valdez), Victor Blanco, Miguel Rabago and Rafael de Aguirre eleven league grants, on the Brazos river above Waco.
    De Bray further testified:
    1. There are no Spanish field notes in the general land office, in the Spanish department, to Perfecto Valdez. The department has been examined thoroughly. The custom of fixing Spanish land titles was this, so far as field notes were concerned: First, the surveyor made them in English, and so returned them. Second, when they were to be incorporated into a Spanish title, they were translated in the alcalde’s office into Spanish and put in the title. There is no such thing as English field notes in a Spanish title.
    2. He was Spanish translator in 1856,1857-58, and now again for the last four years. When called on to make a copy of an original title in the Spanish department, he makes a clean translated copy without regard to words erased or interlined, and without regard to the foot or emendation notes at the end of the title. He knows of no custom in the office; knows only his own habit; but he says but to put in emendation or foot-notes, when a clean copy of the instrument had been made, would be to reproduce notes that did not apply to the body of the instrument. He never makes a copy of erasures or interlineations in the body of an instrument unless requested so to do.
    
      Re-examined: 1. The civil law as laid down by Escriche, under the head of “ Salaor,” requires a note of emendation as to erased words, that not only the new word but the one stricken out shall both be noted, under penalty of the invalidity of the instrument. This was not done in the foot-notes to the Aguirre title.
    Defendant then introduced the last page of a certified copy of. the original title to Aguirre, made in 1838, by the Spanish department of the general land office, to show that in said copy the notes of emendation did not appear; said copy being as follows:
    “Esdado en la villa de Austin ut supra qua firmo con testigos de asistencia segun previene la ley. L. Lesassier.
    “ de asist, Robert Peebles.
    
      “ de asist, C. C. Givens.”
    He also gave in evidence the last page of a certified translated copy of said title, made in the year 1855, as follows:
    “ Given in the said town of San Felipe de Austin, dated up supra,. which I sign with witnesses of assistance as provided by law.
    “L. Lesassier.
    “ Assisting, Robert Peebles.
    “ Assisting, C. C. Givens.”
    
      Plaintiff’s first bill of exceptions Mo. 1 was to the admission in evidence of the following papers:
    1. Title in extenso to Rafael de Aguirre on the Brazos.
    
      2. Same character of title to Miguel Rabago on the Brazos.
    3. Sketch of map from the general land office showing locality of the eleven-league grants to Miguel Rabago, Victor Blanco, Mrs. McManus (Perfecto Valdez), Rafael de Aguirre and Tomas de la, Vega.
    4. Copy of the final title in Spanish to Rafael de Aguirre, embracing the land in controversy.
    5. Certified copy from the general land office of the chain of title to Mrs. McManus.
    6. Sketch map from general land office, showing position of. Joaquin Moreno, Perfecto Valdez and Tomas de la Vega eleven-league grants on the Brazos river.
    7. Another sketch of map.
    Bill No. 2 contained the following papers:
    1. The last page of a certified, translated copy of the Rafael de Aguirre grant, dated the 22d of October, 1833, made on the 20th of January, 1855.
    2. A copy of the last page of the same title, in Spanish, made the 14th of May, 1838.
    To the introduction of the papers in bill Mo. 1, as evidence, plaintiff objected:
    1. Because irrelevant.
    2. Because defendant did not show that he had any contemporaneous interest in the land sued for, at the time it was granted to Rafael de Aguirre.
    3. Because calculated to confuse, and will confuse, the jury, and hinder the administration of the law.
    4. Because immaterial.
    5. Because, as evidence, they were not competent to, and did not, prove, or tend to prove, disprove, or tend to disprove, any issue raised in this case, or that the defendant shows himself entitled to raise.
    6. Because the chain of title to McManus was not proved and recorded, under the statute, nor proved up, under the common law; not an archive in the general land office, and it is not lawful for said office to certify said copy, or any link therein, so as to authorize them or it as evidence.
    To the introduction of the two papers in bill 2 plaintiff object ed :
    1. Irrelevant.
    
      2. Immaterial.
    3. Incompetent to prove, or tend to prove, forgery.
    4. If the notes of emendation were not on the original title at the time said copies were made, nor contemporaneous with it, their subsequent insertion by an unauthorized person would not change the instrument to a forged one, but would only be a fraud practiced, or attempted to be practiced, upon parties claiming under or adverse to said title.
    5. Defendant had not brought himself within the rule to attack said original title, he having failed to show he had an existing contemporaneous interest, equitable or otherwise, at the time said title was issued, or the fraud, if any, was committed.
    The defendant had interposed affidavit of forgery to the original title.
    Plaintiff offered in rebuttal to the evidence of defendant the following papers, among others:
    1. Certified copy from the general land office of a letter from County Surveyor James Howlett to J. P. Borden, commissioner general land office, notifying him that a scire facias had been served on him, Howlett, to show cause why he should not examine and record field notes of surveys made on eleven-league grants, and asking some general instructions relative to the matter, dated Nashville, April 10, 1840.
    2. A like copy of a letter from said commissioner to said Howlett, dated the 11th of February, 1840, calling attention to land office instructions of August 3, 1838, and April 18, 1839, and construing them to the effect that they did not permit any entries on any deeded lands, unless the evidence required by the latter instructions be produced; excepting, however, from the restrictions one of the eleven leagues marked on the map, in the name of Rafael de Aguirre, it having been satisfactorily explained to him by Samuel H. Williams that a mistake had occurred by which two grants of eleven leagues had been granted to said Aguirre, but that the title including ten leagues on the San Gabriel and Williamson creek, dated October 22,1833, is the genuine one — the other eleven leagues on the Brazos might be considered subject to location and survey, as though no title had issued.
    3. A like copy of a letter from and to same parties, dated Austin, April 17, 1840, in which said commissioner said to said surveyor in answer to his letter of April 10th, before set out: “ I need only repeat to you that I consider the title to the eleven leagues on San Gabriel in the name of Rafael de Aguirre as the genuine one, and that you, in the discharge of your duty, are bound to be governed by instructions from this department so far as they are consistent with.law; upon an examination of the original field notes of the land described in both titles to the said Aguirre, it appears that neither survey was made for him, or his agent, and as it is evident an error has occurred in granting the titles, I see no reason why,” etc.
    4. A like copy of the instructions of date 3d of August, 1838.
    Which papers were offered, as then stated by counsel, to prove, as far as they tended to do —
    1. The abandonment of the survey at the mouth of the Bosque.
    2. That the abandonment was received by the government and practically acted on by a proper and authoritative department of the government.
    3. That the validity of the title granting the land sued for had been recognized by the government, and that the government had acted on that recognition.
    Defendant objected to the introduction of these papers, respectively, as immaterial and irrelevant. The court sustained the objection and excluded the evidence.
    Plaintiff asked the court to charge:
    
      “ The fact that the original title from the government to Rafael de Aguirre, dated the 22d of October, 1833, and which is in evidence before you (the jury), may have erasures and interlineations on the face of it, does not affect the validity of said title if they are accounted for by notes of emendation at the foot of the title, above the signature of the officer and witnesses who issued the title, and you are charged that whatever erasures — words written over erasures — and interlineations that appear on the face of said title are sufficiently accounted for by the notes of emendation at the foot thereof and above the signatures of the officers and witnesses by whom the said title was extended.”
    The court modified said charge as follows, and, as so modified, gave it:
    “ The erasures and interlineations are fully explained by the explanations at the foot of the instrument, and you will regard the instrument as valid unless the evidence before you satisfies you that the emendation or explanation is forged.”
    Plaintiff asked a further charge, viz.:
    “I charge you that looking to the face of the original title from the government to Rafael de Aguirre, before you, it appears:
    “ 1. The concession is to Aguirre.
    
      " 2. The order of survey is to Aguirre.
    
      “ 3. The land was surveyed for Aguirre.
    “4. The grant conveys the land thus surveyed to Aguirre.
    “ And I further charge you that the final title based on above papers is in law a title to Rafael de Aguirre, notwithstanding ‘the name Perfecto Valdez appears in the granting clause of said title, and you will consider said title as one to Aguirre and not as one to Perfecto Valdez.”
    This charge the court modified as follows:
    “ Unless you find from the evidence that their final title is a forgery.”
    The charges for defendant were:
    1st. “ Plaintiff is entitled to recover in this case unless, from the evidence, you find the original title to Aguirre is a forgery.
    2d. “ If, from the evidence, you (the jury) find that the Aguirre grant was made and issued to some person other than Aguirre, and that, after its execution and delivery to such other person, said grant was altered so as to make it read to said Aguirre instead of to the person to whom it was originally issued, you will find such grant.to be a forgery.”
    To the modification of plaintiff’s charges by the court, and to giving the charges asked by defendant, plaintiff excepted, for the following reasons:
    1. Because not the law of the case on the facts.
    2. Because the court should determine the validity in law of the original title, and not submit its validity to the judgment of the jury.
    3. Because there was no evidence to authorize such charge or the submission of such issue to the jury by the court.
    4. Because there was no evidence before the jury which would authorize the jury to find forgery of the original title, or which could or would uphold the finding of forgery as to said title.
    5. Because there was no evidence before the jury which proves or tends to prove the forgery of said title.
    6. Because defendant did not bring himself within the rule which would authorize such an issue to be submitted to the jury by showing any equitable or other contemporaneous interest.
    7. Because the proofs in the case before the jury raised a suspicion of fraud, if anything, and did not raise even remotely the suspicion of forgery.
    The application for several of the surveys on the Brazos river, the field notes and maps of which were in evidence, showed that both Williams and his surveyor, Johnson, recognized and called for the survey of Rafael tie Aguirre, eleven leagues, as being on the Brazos river. The two titles showed on their face that the applications were on the same day (October 4,1833), for two eleven, leagues, to the same man, applied for in both cases by Sam M. Williams, surveyed by the same surveyor, and both titles witnessed by same witnesses, and application granted by the same alcalde.
    The signature of the officer extending title, to last page of act of possession, was shown to be genuine, as also those of assisting witnesses.
    The deposition of William Alexander, offered by defendant td show that he had carefully searched the book of protocols at Saltillio, and had found the protocol of the power of May 5, 1832, to Samuel M. Williams, and that the name Rafael de Aguirre Avas not signed thereto, offered, with photographs taken of the same, to prove forgery of the poAver, Avas excluded.
    The court gave a general charge, and submitted issues as follows:
    
      “ 1. Is the original title from the government to Rafael de Aguirre, dated October 22, 1833, a forgery ?
    “ 2. If a forgery, where was it committed ? ”
    The verdict was as follows :
    “1. We, the jury, find the title to be a forgery,
    “2. Between the 11th June, 1832, and October 22, 1838.”
    The general verdict Avas: “We, the jury, find for defendant.”
    Judgment accordingly.
    
      Walton, Green & Hill and D. G. Smith, for appellant.
    I. The court erred as set out in several bills of exception, Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9; citing Hanrick v. Jackson, 55 Tex., 17; Briscoe v. Bronaugh, 1 Tex., 340; Davidson v. Edgar, 5 id., 496, and authorities cited; Long v. Steiger, 8 id., 462; Gamage v. Trawick, 19 id., 65; Willis v. Lewis, 28 id., 191.
    II. On the proposition that the court erred in the particulars set out in bills of exception 1 and 2, which will be explained by statement of case, the plaintiff cited: Hanrick v. Jackson, 55 Tex., 17; Johnson v. Smith, 21 Tex., 726-9; Howard v. Colquhoun, 28 id., 146, 788; Hatch v. Dunn, 11 id., 717; Styles v. Gray, 10 id., 505-6.
    III. On abandonment of the first survey to Aguirre, they cited: Dukes v. Miller, 24 Tex., 425; Maxey v. O’Connor, 23 Tex., 238.
    IV. On the refusal of the court to render judgment for plaintiff (below), non obstante veredicto, they cited: Brewer v. West, 2 Tex., 327; Tidd’s Practice, 9 et seq.; Hays v. Stone, 36 Tex., 186.
    V. On refusal to grant a new trial, they cited: Murphy v. Crain, 12 Tex., 313, 314; Baker v. Cook, 13 Tex., 81; Taylor v. Ashley, 15 id., 51, 52, 53; Ashby v. Thomas, 17 id., 226; Shropshire v. Doxey, 25 id., 128; Green v. Hill, 4 id., 468.
    
      Fisher & Makemson and Terrell & Walker, for defendant.
    I. There was evidence before the jury tending to show that the final title was made to Perfecto Valdez. Frances v. The State, 7 Tex. Ct. App., 513; 1 Greenl. on Evidence, § 51, and authorities cited; Jordan v. Brophy, 41 Tex., 284, and cases cited; Holliday v. Jones, 59 Mo., 482; Tison v. Yawn, 15 Ga., 491.
    II. Arts. 1317 and 1319 (Rev. Stat.) were cited, showing duty of court below in altering and giving charges.
    III. On the exclusion of the letters of the commissioner as incompetent to prove title, they cited: Stafford v. King, 30 Tex., 257; H. & T. C. R. R. Co. v. McGehee, 49 Tex., 482.
    IV. On claim for judgment non obstante veredicto, they cited: Freeman on Judgments, secs. 7, 8, and cases cited.
    V. On exclusion of testimony of Alexander to show forgery in the power from Aguirre of the 5th of May, 1832, they cited: 1 Greenl., 49, 142, 144; 2Phil.Ev., C. & H.’s Notes, pp. 476, 478; Word v. McKinney, 25 Tex., 268; Morgan v. Boyne, 19 How., 149; Andrews v. Marshall, 26 Tex., 216; 1 White’s Land Laws Coahuila and Texas, pp. 282, 283; State v. Cardinas, 47 Tex., 250; Gainer v. Cotton, 49 Tex., 101.
    VI. On the proposition that the power of May 5th, impeached for forgery, and which showed on its face that it was not the copy of an authentic act, could not be read as an ancient instrument, they cited: The State v. Cardinas, 47 Tex., 250; Titus v. Kimbro, 8 Tex., 210; Martin v. Parker, 26 Tex., 260; McKissick v. Colquhoun, 18 Tex., 158; Clay v. Holbert, 14 Tex., 189; Ruis v. Chambers, 15 Tex., 587; Watrous v. McGrew, 10 Tex., 500; Paschal v. Perez, 7 Tex., 356; Jones v. Montes, 15 Tex., 352; Willis v. Lewis, 28 Tex., 187; Powell v. Haley, 28 Tex., 55; Crosby v. Houston, 1 Tex., 134; Wood v. Welder, 42 Tex., 396; Stroud v. Springfield, 28 Tex., 649; 1 White’s Recop., 297; Younge v. Guilbeau, 3 Wall., 640; Owen Hall, 9 Pet., 607; United States v. Sauter, 21 How., 175; Luce et al. v. United States, 23 How., 505; Bunce v. Galligher, 5 Blatch., 487; Hilliard on Torts, 286, 288.
    VII. That the question of forgery is always one of fact for the jury. Phillips on Ev., Cow. & Hill’s Notes, part II, vol. IV, p. 373, note 200; 66 Ill., 14; Little v. Herendon, 10 Wall., 31.
    VIII. That when the face of a patent shows erasure when it was made, is a question of fact as to when it was made; citing 10 Wall., 31.
    IX. That when blemish in deed is by erasure, the deed should be proved, though over thirty years old, and the blemish explained; citing Phillips on Ev., vol. 2, p. 500; id., Cow. & Hill’s Notes, part II, vol. 4, p. 366, note 197; Hill v. Nisbet, 58 Ga., 589 (1877). Same though deed over forty years old. Same rule as to records though over sixty years old, when changes in different handwriting. 43 Pa., 274; also 18 N. H., 340; McCormick v. Fitzsimons, 39 Mo., 24; 20 Ill., 437; Ely v. Ely, 6 Gray (Mass.), 439. And he.who offers such a deed must prove when, with what intent, and who did it. Farnsworth v. Sneed, 4 Sneed (Tenn.), 55; 8 Barb., 514; 3 Ohio (N. S.), 445; Jordan v. Stewart, 23 Pa. St. (11 Harris), 244; Warring v. Smith, 2 Barb. Ch., 119; Mathews v. Coalter, 9 Miss., 705.
    X. Spanish law denouncing invalidity of the instrument, for altering by raspadura or scratching, samé as cited in statement of case and opinion.
    XI. That abandonment cannot be predicated of a vested right to land, they cited: Bunting v. Young, 5 Watts & Serg., 188; 9 Dana, 452; 35 Barb. (N. Y.), 319; Ferris v. Carver, 10 Cal., 589; 25 Pa. St. (1 Casey), 259; 15 N. H., 412; Davis v. Pearly, 30 Cal., 630. Abandonment is never a question of law, but of fact for the jury; citing Russell v. Davis, 38 Cow., 562; Hollingsworth v. Holshousen, 17 Tex., 41.
   Hon. B. H. Bassett, Special Judge.

This is a suit of trespass to try title brought by the appellant Hanrick against the appellee Cavanaugh. The cause was tried by a jury and resulted in a verdict and judgment for the defendant, from which the plaintiff appeals. The plaintiff claims title by mesne conveyance under a concession for eleven leagues of land, embracing the premises in controversy, granted by the government of Coahuila and Texas, the final title to which was extended on the 22d of October, 1833. Only one hundred and sixty acres are involved in this controversy, which the defendant claims under a pre-emption survey dated December 12, 1874, and among other defenses he filed an affidavit impeaching the grant to Rafael de Aguirre for forgery in the final title.

The jury found a general verdict for the defendant, and, under instructions from the court to return a special verdict on the issue made as to the genuiness of the title to Aguirre, found that it was in fact a forgery; and the principal question discussed in the briefs and arguments of counsel relate to the genuineness of this instrument.

The verdict of the jury, if supported by the evidence, is conclusive against the plaintiff’s right to recover, unless the court has committed some error to his prejudice in the giving or refusing of charges, or in the admission or exclusion of evidence. The first question presented relates to the sufficiency of the evidence to support the verdict declaring the grant to Rafael de Aguirre a forgery. The plaintiff introduced in evidence a certified copy from the general land office of a translation of the original grant, consisting of the application for the land, the reference to the empresarios for their consent to a selection of the land within their colonial enterprise; their consent; the selection of the land and its survey by the colony surveyor; the return of the field notes, and the extension of the final title. The survey embraces ten leagues on the Gabriel, now in Williamson county, and one league in Cow Bayou, now in Falls county. These instruments were on their face regular, and sufficient, prima facie, to vest title in the grantee to the eleven leagues of land embraced in the grant.

[This statement is made subject to the qualification that while the name of Rafael de Aguirre appears elsewhere in the grant, the name of one Perfecto Valdez appears as the grantee in the granting clause of the final title. This court has heretofore, however, in passing upon this same title, in Hanrick v. Jackson, 55 Tex., 17, treated this instrument as on its face a grant to Rafael de Aguirre, and we see no reason to question the correctness of that ruling.]

The application for the concession upon which this grant to Rafael de Aguirre purports to be issued was made in a single instrument by three parties, to wit, Jose Maria de Aguirre, Rafael de Aguirre and Tomas de la Vega, and the concession, which was also in a single instrument, was attached to the title of another of the parties, and an unauthentic copy only was embodied in the title of Rafael de Aguirre, but that circumstance was, in Hanrick v. Jackson, properly held not to affect the validity of the grant. In support of the issue tendered by his affidavit of forgery, the defendant introduced from the archives of the general land office the original of the grant under which the plaintiff claims, with photographic copies of the same, and' parol evidence relating thereto, from which it appears that a number of erasures, alterations and interlineations in material portions of the final title have been made since it was originally written. The name of Rafael de Aguirre is written over some other name, apparently that of Perfecto Valdez. The recital of the date of concession has been altered by writing the 14th June, 1830, over some other date, apparently the 13th July, 1830, while the words “ and the 2d of May of the past year” have been interlined. The locative call has been changed by writing the words San Javiel or San Gabriel over other words, apparently the Brazos river, while the words “ and the Cow Bavou” have been interlined. The mode of making the alterations in the name of the grantee, in the recital of the date of the concession, and of the locative call on the San Gabriel, was generally, though not uniformly, to erase by scratching out the original word or words, except such parts of them as might be used in forming the substituted words. The work, if done with the design to conceal the alterations, was not very skilfully performed, but the alterations would scarcely attract attention on a casual reading of the instrument. The words interlined and those substituted, but not those erased, are noted in the emendation clause at the foot of the instrument, and above the signatures of the alcalde and the assisting witnesses. The handwriting of the emendation clause, though smaller and rather more clearly written than the body of the instrument, yet bears a general similarity to it; but there is some conflict in the opinions of different witnesses as to whether both are in the same handwriting. It is not denied by the defendant that the signature of the alcalde, Lesasseur, and those of the assisting witnesses, Givens and Peebles, are genuine. The charge of forgery is predicated on the idea that the erasures, substitutions and interlineations were made and the emendation clause added after the instrument had been signed and issued, whereby a final title, originally extended to Perfecto Valdez, for lands on the Brazos river, has been made to read as if extended to Rafael de Aguirre for lands on the Gabriel and Cow Bayou.

The papers connected with this title show that Samuel M. Williams, who was associated with Austin in the colonial enterprise, within the limits of which the grant was located, acted as attorney for Aguirre in soliciting the concession, and for himself and Austin in consenting to the location within their colony; that as attorney for Aguirre he had applied for and received from the alcalde the final title in question, and, as his attorney, had afterwards sold the land to the plaintiff’s remote vendor. The defendant introduced also the original application of Perfecto Valdez for a concession of eleven leagues of land, dated July 10, 1830, and the concession dated July 13, 1830, tho consent of the empresarios, Austin and Williams, to the location of the survey within their colony, a certified copy from the general land oifice of a chain of title from Perfecto Valdez to Mrs. Jane McManus, the English field notes of an eleven-league survey on the east bank of the Brazos river, made for Mrs. McManus, anil a map or sketch from the general land office, from which it appears that the Perfecto Valdez or McManus eleven-league grant was located on the Brazos river. No final title appears to have been issued on this concession to either Perfecto Valdez or Mrs. McManus, bat the final title which was extended to Rafael de Aguirre, and under which the plaintiff claims, would, prior to the alterations, erasures and interlineations already referred to, have perfectly lilted the Valdez concession. The defendant also introduced a copy of another eleven-league grant issued to the same Rafael de Aguirre, which, as shown by the maps, was located on the Brazos river. It purported to be based on the same application and concession upon which the grant in controversy was issued. The application for this grant was also made by Samuel M. Williams, .as attorney for Eafael de Aguirre, and he, for himself and Austin as empresarios, consented to the location within their colony. The final title was issued October 4, 1833, Williams acting for Aguirre in applying for anil receiving it.

The dates of Williams’ several acts in connection with this title .are identical with those performed by him in connection with the title for the grant on tho Gabriel and Cow Bayou which is in controversy in this suit. The defendant introduced also a certified copy of a grant of eleven leagues to Miguel Rabaga, for whom also Williams was attorney, tho field notes of which call for the last mentioned survey for Rafael de Aguirre on the Brazos, and which the maps show to be connected, both being located on the Brazos river. The defendant also introduced in evidence the last page of á certified, translated copy of the Rafael de Aguirre grant, tho certificate being dated in 1855, and a certified copy of the last page of the same title in Spanish, made in 1838, in neither of which is the emendation clause noted at the foot of the title as it now appears. In both copies, however, the body of the instrument is identical with the face of the grant as it now appears, no alteration or interlineation appearing, and it is not improbable that the emendation clause existed at those dates, and was omitted by the copyist because, in giving a clear copy of the instrument, the emendation clause would be meaningless, there being nothing in the copy to which it could apply. Other circumstances more or less remotely bearing on the question at issue, shown in evidence or claimed to be matter of public history and judicial cognizance, were invoked by the defendant in support of his theory that the grant purporting to have been extended to Rafael de Aguirre on the 22d of October, 1838, was in fact forged by altering the final title issued to or intended for Perfecto Valdez, so as to make it read as a grant to Rafael de Aguirre for the ten leagues on the Gabriel and the one league on Cow Bayou, including the promises in controversy.

The plaintiff in rebuttal showed, what indeed was not denied by the delendant, that the signatures of the alcalde and of the assistant witnesses to the grant were genuine; the defendant’s theory being that tho alterations constituting the forgery were male subsequent to the execution of the instrument. In this connection is to be considered the extreme strictness of the civil law in guarding against fraudulent alterations of public instruments — a familiarity with which must be presumed on the part of the ollieer who extended the title in question and of those who were intereste l in it.

The following passage, translated from Escriche’s dictionary of legislativo tille to instrument's, will convey an idea of the rules of the civil law relating to this subject. From page 883, second column: “in order that a public instrument he considered authentic and lawful the following circumstances are required:” . . . Page 888, second column. “8. That the document be cleanly written, without blanks, erasures, obliterations, interlineations or corrections, especially in the substantial parts; for example, in the names and surnames of parties, of the notary public and the witnesses, in the terms and the amount, and the thing in relation to which the writing is done, in the compact and conditions, and in the day, month and ycu.tr of tho date, and in the place where the instrument was executed ; and that, in case that any correction, obliteration or addition be made at the time of reading the instrument to the parties, the same be authenticated at tho foot of it by the notary, previous to the signing, in order to prevent suspicion of fraud. Ley III, title 18, part 3; Ley XII, title 18, part 3; Ley I, title 23, title 10, Nov. Rec., and Code de Cem, art. 210.

“ The two laws of the Partidas above quoted characterize as suspicious and unworthy of credit any instrument of writing which has been scratched, corrected, underscored, written over, or torn or out in any of the substantial parts above referred to, unless the party introducing it shall prove that it was done by force or accident; and on the contrary, they require its admission as valid if it bears no such vices or defects in any of its essential parts, and when there is no suspicion of á fraudulent intent.

“ The second part of the provisions of these laws is perfectly just in relation to any instrument, whether a matrix or an original copy, for the rejection of a paper for an unimportant vice or defect would be intolerable. Likewise the first part of the provision concerning the copy called original, introduced or exhibited by a party in support of his' claim, appears to be just; since the instrument in his power, having operated, or having to operate, in his favor, an essential alteration in it, and not authenticated by the notary public, should be attributed to him, and nobody else, unless the contrary be proven. In fact, the laws above mentioned seem to have referred to that class of instruments.

, “But shall we also apply the first part of the provisions to the matrix’ preserved by the notary public among his protocols? If the instrument (the matrix) appears with the obliterations, additions, corrections, or other alterations, not authorized as the law requires, shall it be null and void to the prejudice of either, and perhaps both, parties? We may suppose either that the two instruments were closed and signed after the alterations were made, or, on the contrary, that the alterations were made after the instrument had been perfected and signed. It would be natural to suppose that the instrument was closed and signed without the alteration, for the presumption is that while writing the notary public would conform himself to the requirements of the law, and the law required him to mention and authenticate them before signing, if, in fact, they existed at that time. Therefore an instrument shall not be null on account of the failure to approve or authenticate the alteration that may be found in it, because it should not be in the power of the notary public or anybody else thus to destroy the effects of an authentic document to the prejudice of the parties interested; but on the contrary the alterations shall bear the vice of nullity, the additions, writing over, erasures and the corrections shall be considered as not having been made, and the words unlawfully written over or prased, or altered, shall be considered as existing, and shall have all their effects when their tenor can be ascertained, or an interpretation, or combination of that which precedes, or that which follows, discloses their meaning.

. “ It may objected that this would suppose fraud in the notary public, against the general rule that fraud should not be presumed; and that it is more reasonable to suppose in him mere neglect, and that he overlooked the alterations which were already made. But in the first place it is quite possible that it was not the notary public, but some other person, who made the alteration; and in the second place the notary should blame himself for having given room for this presumption against him; in the third place, the fate of instruments should not be left at the mercy of an amanuensis, or other person who might be seduced by one of the parties.

“Besides, if the original copy is in existence, the fact of the reproduction or omission of the words written or added may assist to ascertain whether the alteration was made before or after the closing and signing of the principal document, and consequently it will be possible to decide whether there was fraud or a mere omission. From page 888. . . .

Sixth. That the day, month and year, and the place or town where the instrument is executed, should be expressed as well as the names, surnames and residences of the parties and witnesses. The names of persons and towns should not be written with their initials alone, nor should any alterations or ciphers that in substantial things may produce obscurity, equivocation, or contention; and that quantities and dates be expressed in letters, and not in numbers and figures, under penalty of nullity of the instrument, and upon the responsibility of the notary public for any damage and injury that by his act may accrue to the parties.” Escriche, Dici Leg., pp. 886-888.

We have not overlooked the fact that the field notes contained in the title to Bafael de Aguirre for the lands on the Gabriel and Cow Bayou purport to have been made by the surveyor, F. W. Johnson, and from his deposition found in the statement of facts it appears that in 1833 he made a survey of the land in question for one Williamson (Williams?). But the answers of the witness, however important to either party, are copied into the transcript without the interrogatories necessary to make them intelligible. The survey made by him and incorporated into the grant by Bafael de Aguirre are without dates. The testimony or duplicate original of the final title to Bafael de Aguirre, which ought regularly to have been issued and delivered to the grantee or his attorney on the extension of the title, is not produced or accounted for. Upon a review of all the evidence submitted by both parties to the jury on the issue of forgery, we are not able to say either that their verdict was without evidence to support it, or that it was so manifestly against the weight of the evidence as to authorize this court, under its well settled rules, to set it aside. The appellant assigns as error the charge of the court submitting to the jury the issue whether or not the original title from the government to Rafael de Aguirre, dated October 22,1833, was a forgery. The court charged the jury, in effect, that the grant to Rafael de Aguirre, under which the. plaintiff claimed, was on its face regular and sufficient to vest title in the grantee, and that the plaintiff was entitled to recover unless they should find from the evidence that the original title was a forgery; and charges asked by plaintiff, presenting at greater length his claim of title and ascertaining its sufficiency to entitle him to recover, were modified by the court by adding: “Unless you find from the evidence that the final title was forged.”

' The court also submitted to the jury a special issue as to whether said original title was in fact forged; all of which is complained of by the appellant, and in support of his views he urges the authority of Hanrick v. Jackson, supra,. It was held in Hanrick v. Jackson that the defendant claiming under a junior grant, and showing no equity existing prior to the issuance of the title to Rafael de Aguirre, could not successfully impeach the grant for fraud or irregularity in its issuance, from which it is argued that in this case the defendant, who also claims under a junior right unconnected with any antecedent equity, ought not to be permitted to question the grant on the ground of forgery. But if the grant is a forgery; if it was in fact never issued by the officer by whom it purports to have been issued, or if by subsequent alterations it has been made apparently to confer rights not conferred by it at the time it was is mod, then it is not voidable only; it is absolutely void, and is subject to attack by any one against whom it is sought to be used. We find no error, therefore, in the submission to the jury upon the issues raised in this case of the question of the genuineness of the title under which the plaintiff claimed, and denying him the right to recover in case the jury should find it to be a forgery.

It is insisted that the court erred in admitting in evidence, and afterwards in refusing to withdraw from the consideration of the jury, the several instruments already referred to, tending to show that Rafael de Aguirre had previously received a perfect title to eleven leagues on the Brazos, based on the same application and concession on which the grant in controversy purports to be based; that other grants, issued about the same time, and with which Williams was also connected, recognized the survey made for Aguirre on the Brazos; that Perfecto Valdez had taken the preliminary steps which would have authorized the extension to him of a final title, such as that under which the plaintiff claims appears to have been before its mutilation, together with the maps and sketches from the general land office showing the location of the first eleven leagues granted to Rafael de Aguirre on the Brazos, with corrected surveys, and of the Perfecto Valdez survey, also on the Brazos, with its connected surveys, and the certified conies made in 1838 and 1855 of the final title to Rafael do Aguirre for the lands on the Gabriel and Cow Bayou. The objection to the evidence was because of its supposed irrelevancy.

Ww think, however, that on the issue of forgery made by the affidavit, which mint be sustained, if at all, upon circumstantial testimony, the evidence offered, though some of it was remote and entitled to but little weight, was proper to go to the jury and to be considered by them in connection with all the other facts and circumstances bearing on the issue.

The admission of the land office copies of the chain of title from Perfecto Valdez to Mrs. McManus was especially objected to on the further ground that, no final title having issued, they were not properly archivos of the land office; but we think they were properly admitted under the provisions of the Revised Statutes, secs. 2253, 2259 and 3808.

Such assignments and transfers are, under the provisions of the Revised Statutes, made archives of the land office, and are not subject to be withdrawn by the parlies at interest, and the rule and the reasoning in Short v. Wade, 25 Tex., 510, no longer apply. It is further to be observed that the error, if any, in the admission of the certified copies would have been rendered immaterial by the subsequent introduction of the original instruments themselves, which, coming from proper custody, to wit, the land office, and being more than thirty years old, were properly admitted without other proof of their execution.

The appellant assigns as error the refusal of the court to admit in evidence the correspondence had in 1840 between J. P. Borden, then commissioner of tho general land office, and James Howlett, county surveyor of the district embracing the eleven leagues on the Brazos granted to Rafael de Aguirre on the 4th of October, 1833, and relating to that survey, the purport of which correspondence was to show that Williams had satisfactorily explained to the commissioner that a mistake had occurred by which two grants of eleven leagues each had been granted to said Aguirre, and that in the opinion of the commissioner, that which included the ten leagues on the Gabriel, dated October 22, 1833 (the one involved in the controversy), was a genivne one, and that the eleven-league survey on the Brazos was to be considered as subject to location and survey as though no title to it had issued. It is contended by the appellant that the evidence was proper as tending to show an abandonment by Aguirre of the survey on the Brazos, a recognition on the part of the proper officer of the government of the fact of such abandonment, and a like recognition by the proper officer of the validity of the title now in controversy. It is only necessary to suggest in reply that the commissioner of the general land office had no authority to create or to annul titles to land by ex parte orders to the surveyors. H. & T. C. R. R. Co. v. McGehee, 49 Tex., 489.

The remaining assignments have been incidentally disposed of in the determination of those already considered.

We find no error in the judgment of the court below, and it will be affirmed.

Affirmed.

[Opinion delivered June 22, 1883.] 
      
       Chief Justice Willie and Associate Justice West being disqualified, B. H. Bassett, Esq., and N. W. Finley, Esq., were appointed by the governor special justices.
     