
    AUSTIN TERM,
    1882.
    E. Golden v. T. G. Patterson.
    (Case No. 4555.)
    1. Question of identity fob the jury.—In an action of trespass to try title to land patented to J. S. G., the grantee of the certificate, and when the plaintiff claims under a transfer of the certificate signed J. J. G., there being no evidence of the identity of J. S. G. and J. J. G., it is error for the court to assume that identity in its charge; and an assignment of error that the court erred in that charge, setting it out, is sufficiently specific.
    Appeal from Grayson. Tried below before the Hon. Joseph Bledsoe.
    
      Wilkins & Cunningham, for appellant.
    
      C. N. Buckler, for appellees.
   Bonner, Associate Justice.—

This is an action of trespass to try title for part of a survey of land located and patented by virtue of the Joseph S. Guest headright certificate, brought by appellees T. G. Patterson et al., plaintiffs, against appellant E. Golden, defendant.

The statement of facts shows that plaintiffs purported to deraign title under said Joseph S. Guest, by written transfer indorsed on the certificate, which transfer was executed under the name J. J. Guest to Joseph H. Golden, and under subsequent' mesne conveyances and descent down to themselves. This transfer on the certificate seems not to have been respected in the general land office, as the patent subsequently issued in the name of the original grantee of the certificate, Joseph S. Guest. The statement of facts does not show that there was any testimony to identify the name J. J. Guest with Joseph g. Guest, to whom 'the certificate issued.

The defendant pleaded not guilty.

[Opinion delivered April 11, 1882.]

On the trial below the court instructed the jury, in clause first of the charge, as follows:

“lst. The transfer of Guest to Golden of the land certificate offered you in evidence, and the deed from Joseph H. Golden to Alonzo Larkin, and from Larkin to Earheart, and from Earheart to Benjamin Patterson, and the patent to Guest, and if you believe that the plaintiffs are the heirs at law of said Benjamin Patterson, will entitle the plaintiffs to recover the land in controversy, provided said land is included in the field notes in said patent.”

There was a verdict and judgment for the plaintiffs.

The above charge of the court is assigned as error, and it is replied that this assignment is not sufficiently specific.

We are of opinion that it is sufficiently specific, and also that it is well taken.

The court assumed in the charge that it was proven as a question of fact that the signature, J. J. Guest, was that of the original grantee, Joseph S. Guest, without the initials even being the same, or other evidence of identity.

This was not simply a charge upon the legal effect of undisputed documentary testimony, but the assumption of a material question of fact, which it was the exclusive right of the jury to decide. R. S., art. 1317.

For this error in the charge the judgment is reversed and the cause remanded.

Reversed and remanded.  