
    Wheeler v. Moody.
    of dwathe icslimonio. But, querci Under par- - ticular circumstances oisuspieion. (Note 5S.) In order to coi~Mtute on abandónrnon~ of the eo~nti'y, within the intent of the colonization laws of Coahuila and Texas, the removal must have been voluntary. Vondittons subsequent, (annexed to original titles,) which were ineon~istent with our in~titu-
    awdtions. such as the pavmentofa certain sum to be applied to the erection of churches, were discharged by force of the change of government effected by the Revolution. The 10th s~etionof the goner~tl pios~ision~of the Constittitibn of the Republic cliepont~ed with - the peiformeuce of the con(Iit~ou of settlement annexed to titles foi' town lot~. Possession, to be effectual either to prevent a recovery oi' to vest a right under the statute of limitations, mnst be an aetna I p~~~session, ilteniled with a manifest intention to hold and continue it. It must be, to tIle language oft he auth oi'i ties, an actual, continued, ad verse, and
    adwexciusivo possession for the u~paee of time required by the slatuto. It noel not be continued by the same person; buitwhcn hold by dittbrent pei'son~, it
    dawdmust be shown that a priviLy existed between them. 186 our in~titu� tions. such as the pavmentofa certain sum to be applied to the erection of churches were discharged by force of the change of government effected by the Revolution.
    The 10th s~etionof the goner~tl pios~ision~of the Constittitibn of the Republic cliepont~ed with � the peiformeuce of the con(Iit~ou of settlement annexed to titles foi' town lot~.
    dadwaPossession to be effectual either to prevent a recovery oi' to vest a right under the statute of limitations mnst be an aetna I p~~~session ilteniled with a manifest intention to hold and continue it. It must be to tIle language oft he auth oi'i ties an actual continued ad verse and exciusivo possession for the u~paee of time required by the slatuto. It noel not be continued by the same person; buitwhcn hold by dittbrent pei'son~ it must be shown that a priviLy existed between them.
    
      It is proper to refuse to giro instructions which ore based upon assumptions of fact either contrary to or not warranted by the evidence, without regard to whether they are correct as abstract propositions or not. (Note 5'.).)
    Appeal from Victoria. This was an action brought by the appellee against the appellant to recover a town lot in the town of Victoria. Tlie plaintiff claimed under a title issued by Fernando de Leon, as commissioner of lie Leon’s colony, to Eugenio Benavidas, in 1835. Tlie defendant pleaded “not “guilty.’’ lie. also claimed title in himself derived from the government of the Bepnblie of Texas through the corporation of tlie town‘of Victoria. lie further pleaded tlie statute of limitations of three and ten years.
    Tlie plaintiff gave in evidence a translated copy from the General Land Office of the original title issued by the commissioner De Leon to Benavidas, hearing date on the 17th day of March, "1835; to the admission of which the defendant objected on the ground that there was no evidence of the authority of Fernando De Leon to issue titles to land, and on the further ground that there was no evidence that a testimonio liad been issued — tlie defendant objecting that tlie copy was not admissible without proof of tlie loss of the testimonio. Tlie court overruled the objection. The title introduced purported to have been issued conformably to the provisions of the, colonization law of the 24th of March, 1825, and the instructions of the 4tli of September, 1827. Annexed to it were the conditions of occupancy and cultivation, and tlie payment of one dollar, “by way of acknowledgement, as provided in the 30th article of the “aforesaid law of colonization.”
    Tlie plaintiff" also gave in evidence a conveyance from Benavidas ami wife to himself, and proved the identity of the lot. lie further proved that Bena-vidas was a colonist in De Leon’s colony, Hie head of a family, and a resident in Victoria at tlie date of the grant, and until June 1S3G; ho never lived upon or improved the lot in question; that lie and his family were among those who were sent to New Orleans by tlie military authorities of the country in June, 1830; that ho went to Louisiana against his will, and did not return until in 1848, since which time lie lias resided in that county.
    Tlie defendant gave in evidence a deed to himself to the lot, from the town of Victoria, dated June 23d, 1S47. He proved that, immediately after the date of this deed, he erected a house upon tlie lot in question, which was generally occupied by his tenants until he sold it to one Bosell, on tlie Gtli day of April, 1850. Bosell in a few days thereafter, in the same mouth, removed tlie house off" the lot. There was no iuclosure or other improvements made upon tlie lot. The defendant further proved that one Hicks, claiming by deed from the town, built a house on the lot in 1840, which remained there three or four years; that Hicks’ house was removed and the lot was uuinclosed and unoccupied until the defendant built upon it in 1847.
    At tlie request of the plaintiff' the court instructed the jury that if the plaintiff vendor, Benavidas, did not voluntarily abandon the country his title was good without showing a compliance with tlie conditions annexed to his grant; that the three years’ possession, necessary to bar the plaintiff’s right of action, must have been ail actual, visible, and notorious occupation of the land in controversy, commenced and continued adversely to the plaintiff for the period of three years under a title or color of title; and that it was incumbent on the defendant to prove tlie fact of such adverse possession; that tlie mere assertion of a claim to tlie land is not such possession; and that tlie defendant cannot attacli his possession to that of others having no privity of estate with him, so as thus to make out tlie period necessary to bar the right of action.
    The defendant asked the following instructions, which the court refused:
    That if tlie defendant dkl not intend to abandon the possession when he sold his house, and this was generally known, his possession was continued; that an actual possession commenced, continues until there is some evidence of an intention to abandon It; and that the fact that a party who had been in the actual possession left the premises and was not actually upon the laud is not conclusive evidence of his intention to abandon the possession.
    
      There was a verdict and judgment for the plaintiff; a motion for a new trial overruled, and the defendant appealed.
    
      A. S. Cunningham, for appellant.
    
      A. H. Phillips, for appellee.
   Wheeleb, J.

The grounds relied on for a reversal of the judgment are—

1st. The admission of the plaintiff’s evidence of title.

2d. The instructions of tiie court on the subject of abandonment of the country, and proof of performance of the conditions of the grant by the original grantee, under whom the plaintiff claimed.

3d. The instructions of the court and the finding of the jury in reference to the defense of the statute of limitations.

1. The objection that there was no proof of the authority of the commissioner De Leon to issue the title is not now relied on, and need not be noticed, further than to remark that the existence of Martin De Leon’s colonial contract, and that Fernando De Leon, who issued the present title, was the commissioner of that colony, and as such authorized to issue titles to colonists, are facts so notorious in tiie history of .the country, and so fully recognized and established iu its legislative and judicial proceedings, as to have become matters of judicial cognizance. (Robertson v. Teal, ante.)

In the act of the 10th of December, 1841, (6 Stat., 15,) confirming the title to certain lands in the corporation of the town of Victoria, under which the defendant claims the lot iu question, these facts are recited. The official character of Fernando De Leon and his authority are expressly recognized; and we are of opinion that proof of his official character was not necessary iu this case.

The translated copy of the title from the General Land Office is made by the statute (Hart. Dig., art. 744) prima facie evidence of the same grade as the original or protocol of which it is a copy. That, unquestionably, would be primary evidence, and, as such, admissible. As between the testimonio and the land-office copy, the former, on general principles, would be the best evidence. The latter would be but secondary, and, in order to its admission, it would be necessary for the party offering it to account for tiie non-prodnetipu of the testimonio. But since the statute has elevated the land-office copy to the same grade as the original, it is no longer secondary but is primary. evidence, and consequently is admissible without producing or accounting for the non-production of the testimonio. Perhaps, under particular circumstances of a character to cast doubt and suspicion on the title, it might be necessary to prove that a testimonio had been delivered or had existed. No such circumstances, however, appear in tiie present case. On the contrary, it was in proof that the grantee was a colonist, and the inference is that be was justly entitled to the grant which he received. Upon the principles main-' tained by repeated decisions of this court, the evidence in question was, we think, admissible. (Houston v. Perry et al., 3 Tex. R., 393; and see cases recently determined at Austin and Tyler.)

2. Tiie court rightly ruled that to constitute an abandonment of the country the act must be voluntary. This principle was settled in the case of Hardy et al. v. DeLeon. (5 Tex. R., 211.) Such a doctrine as that a party shall forfeit his title and suffer disfranchisement in consequence of an involuntary act, done by coercion and compulsion of the constituted authorities of bis country, civil or military, would be too revolting- to the common sense of justice of mankind to find a place in any just or enlightened code. -There certainly is nothing in the laws of this country which can give sanction or countenance to such a'priuciple.

The title issued to Bcnavidas was a perfect title. The conditions annexed to it were conditions subsequent. That imposed under the 30th article of the colonization law of 1825, which required the payment of a certain sum, to be applied to (he building of churches, if not previously performed, was discharged by force of the change of government effected by the Bevolution of 183G and 1ho principle of religions liberty incorporated into the organic law of the Republic, by which freedom of conscience was secured and religion was emancipated from the civil authority. (Const. Rep. Dec. of Rights, sec. 3; Blair v. Odin, 3 Tex. R., 288, 300-1.) The condition of occupancy and cultivation, in respect to titles of the class to which the present belongs, was dispensed with by the 10th section of (lie general provisions of the Constitution of the Republic and the, 24 th section of the land law of the 14th of December, 1837. (Hart. Dig., art.. 1800.) There was, therefore, no error in the instruct ion of the court iu question.

Note 58. — Nicholson v. Horton, 23 T., 47; Lambert ». Weir, 27 T., 359.

Note 59, — Andrews i>. Marshall, 20 T., 212

3. It remains to inquire whether there was error iu the judgment in reference to the defense of tiic statute of limitations. To bar a recovery by one, having title, under the 1.1th section of the. statute, (Hart. Dig., 2391,) the defendant must have, been “in possession under title, or color of title,” during- the period of three years. The possession, to be, effectual either to prevent a recovery or vest, a right under the statute, must be an actual possession, attended with a manifest intention to hold and continue it. It must be, in the language of the authorities, an act ¡ml, continued, adverse, and exclusive possession.- (9 Serg. & R. R., 26; Angell on Dim., chap. 31, sec. 12.) There must be an actual occupation of tile premises, continued for the space of time required by the statute. (Ib.; 1 Marsh. (Ky.) R., 10(5; Id., 207; 3 Id., 366; Adamson Ejectment, Amer. ed., App., n. A.) That there was not such occupation or possession in the present case is manifest. At the date of the defendant’s deed there was no occupancy of the lot, and consequently there was at the time no adverse possession by those under whom be claimed. It is clear that lie could not connect his possession with that of Hicks, for the reason that Hicks had long before relinquished tin* possession and ceased to occupy tiie lot; and for the further reason that there was no privity between them. The. possession need not he continued by (lie samo person ; but wheu held by different persons it must be shown that a privity existed between them. (Id.; Winn v. Wilhite, 5 Mart., N. S., 52-1.) The defendant’s possession commenced witli the erection of the house, which in' afterwards sold to Rosell, and it was discontinued when the house was removed from the. lot, and it, was thereby stripped of the only improvement upon iu Three years liad not then elapsed. The possession of the dei'emVuit, therefore, was not continued for the space of time required by the, statute to render it effectual in bar of the plaintiff’s action ; and it is too clear for controversy that the statute of limitations could not legally avail the defendant, in any aspect in which the law might have been presented in the instructions. Whether the instructions refused were correct or not, as abstract propositions, is immaterial. They were rightly refused for the reason that they were based on assumptions of fact cither contrary to, or not warranted by, the evidence in the case. The verdict and judgment were in accordance with the evidence and law of the case, and the judgment is therefore affirmed.

Judgment affirmed.  