
    E. G. Hanrick v. W. A. Dodd.
    (Case No. 5075.)
    
      1. Alterations — Civil law.— The civil law was extremely strict in guarding against fraudulent alterations of public documents, and the officers who acted under it will be presumed to have been familiar with its requirements.
    2. Same.—The civil law required that a public document be clearly written, without blanks, erasures, obliterations or corrections, especially in the substantial parts; or where corrections were made, that they should be authenticated at the foot by the officer. Not only should the words substituted and validated be shown, but also the words abandoned and made void (following Hanrick v. Cavanaugh). This rule applies as well to the testimonio as to the protocol of a title.
    3. Same — Mexican grant.— Reference may be had to the testimonio of a title, if it be in existence, to test by its appearance whether a change apparent on the face of the protocol was made before or after the title issued.
    4. Fact case — Verdict.— See statement of case and opinion for facts which were held to fairly support the verdict of a jury finding forgery in the protocol of what appeared to be a grant of eleven leagues of land, dated in 1833.
    5. Divesting title.— Under the Mexican law, as under the common law, an estate granted by the government cannot be afterwards divested upon mere surmise or suggestion. A formal conveyance or a regular proceeding was requisite to divest title.
    6. Abandonment—Grant.— When two grants, each for eleven leagues, were shown in the name of the same grantee, the failure to show that a testimonio issued of the first grant raises no presumption that it was abandoned before the second grant issued.
    7. Forgery — Evidence.— On an issue of forgery of what purported to be the protocol of a grant, it was not error to admit in evidence certified copies of sketches, maps and surveys nearly contemporaneous, made by those who participated in procuring the grant, and having reference to it, to be considered with other facts in evidence relating to the issue of forgery of the grant. Following Hanrick v. Cavanaugh, 60 Tex., 1.
    8. Abandonment — Evidence.— A correspondence by letter between a commissioner of the general land office and a county surveyor is not admissible to affect the question of title to land in a controversy between other parties; nor can a letter from the commissioner of the general land office be admitted to show an abandonment of title by one in whom it has once vested.
    9. Abandonment.— A title which has once vested cannot be divested by a mere declaration of abandonment. Following H. & T. C. R. R. Co. v. McGehee, 49 Tex., 489, and Hanrick v. Cavanaugh, 60 Tex., 1.
    10. Evidence— Judgment.— When, in trespass to try title, it is not shown that a judgment offered in evidence was rendered in a suit involving the title, or that the defendant against whom it is offered was a party to the former suit or in privity with some one who was, it should be excluded,
    11. Constitution construed.— Sec. 2 of art. 14 of the state constitution, prohibiting locations on lands “ titled, or equitably held,” has no application to land claimed to be covered by a forged grant, and does not prevent a preemptor from establishing his pre-emption on the same.
    
      Appeal from Williamson. Tried below before D. W. Doom, Esq., Special Judge.
    This case involved the validity of the same grant to eleven leagues of land situated in the colony of Austin & Williams (now in Williamson county) which was involved in the case of Hanrick v. Cavanaugh, 60 Tex., 1. Reference is made to the very lengthy statement deemed necessary in that case for a more clear understanding of this. The appellant relied on the protocol or act of possession of a grant for eleven leagues of land to Rafael de Aguirre. In this case Dodd, the defendant, claimed one hundred and sixty acres of the land alleged to be covered by the grant, under a preemption claim, originating on the 14th day of September, 1874. The defense was forgery of the grant, which it was urged consisted not in the forgery of the name of Lesassier, the officer who signed the grant, or of his assisting witnesses, but in changing the name of the grantee in the protocol and the description of the land granted, as well as the reference in the grant to the date of the concession by virtue of which the title was extended. These changes, it was claimed by the defendant, were made by erasing words and letters and parts of words, and substituting others, without revealing the erased words and invalidating them in the notes of emendation before the grant was signed. The words changed were noted by validating the new word, but the old words were not named in the foot-notes, or revealed and invalidated in terms.
    The forgery charged was of the protocol or matrix of the grant, and not of the testimonio, which was not in evidence. It was contended by the defendant that the title, when issued, was a grant to one Perfecto Valdez, whose name still appeared in the grant in the habendum clause, and to whom a concession had issued on the 13th day of July, 1830. That the name of Perfecto Valdez had been erased in the granting clause, and that of Rafael de Aguirre inserted, letters and parts of letters of the original name being preserved. The date of the concession to Aguirre was the 14th of June, 1830, and it was contended that the grant showed on its face a change in the reference to the concession in which it issued from “ 13th of July” to “14th of June.”
    Photographic copies of the grant were used on the trial, which De Bray, the Spanish translator in the general land office, after inspecting, stated revealed the alterations and changes as shown by their original. His testimony, pointing out and showing those changes as they appeared in the original, was objected to for the following reasons:
    
      1. The changes are in writing.
    2. The changes, whatever they may be, are manifest to the jury on an inspection of the photographs, as much so as they are to the witness.
    3. It is not competent for the witness to explain orally to the jury what he may see, or think he sees, the jury being as able to see as he is.
    4. The paper fully explains itself.
    5. If there be a defect in the paper, it is latent, and cannot be explained save by appealing to the whole instrument — not only of the final title itself, but to the preceding parts on which the final title is founded.
    The objections were overruled, and the witness De Bray testified in regard to those alleged changes.
    ITis testimony was, in the main, about as detailed in Hanrick v. Cavanaugh, 60 Tex., 1.
    With a copy of the protocol in bis hand, Col. De Bray pointed out the erasures, substitutions, interlineations and emendations, and how they were made, and what sort of pen and ink he thought was used. He said the whole instrument, including the alterations and foot-notes, was in Samuel M. Williams’ handwriting, but the last four words, “ también, también, Junio, Junio,” were a little cramped, and did not resemble the bold handwriting of Samuel H. Williams. That the alterations were all noted by mentioning the substituted words above the signatures of the alcalde and assisting witnesses.
    He held in his hand two photographic copies of the last page of the protocol, both taken from the same negative under his supervision. In one of these copies the four lines of foot-notes at the bottom of the protocol had been rubbed out; in the other they had not been interfered with. He said that the one with the foot-notes in it represented the usual space that Lesassier, in signing his titles, left between the last line of the writing and his signature, but the one with the foot-notes rubbed out showed double the space usually left by him between the last line of the writing and his signature, and considerably greater space than he ever saw in any title in the general land office issued by Lesassier. That he had examined Lesassier’s titles in the land office, to see if any of them had so great a distance between the writing and signature as would be in our title with the foot-notes erased, and he did not find one. He also exhibited a photographic copy of the last page of the Thomas de la Yega title, which was also made under his direction, and said it was a fair specimen of the last page of Lesassier’s title. He stated that it had the same space between the writing and Lesassier’s signature that this title had with the foot-notes in it, and double the distance it had with the foot-notes rubbed out.
    The record, among much other evidence, showed:
    1. Two final titles to Rafael de Aguirre (if the one relied on by appellant was genuine) to different eleven leagues of land, on one and the same concession, each signed by the same assisting witness, and extended by the same alcalde, Lesassier.
    2. The survey of the eleven leagues in controversy was without date.
    3. The first title extended was for eleven leagues on the Brazos river, and dated October 4, 1833; the second title was for ten leagues in controversy on the San Gabriel and one league elsewhere, and dated eighteen days afterwards, October 22,1833.
    4. The title in controversy was in the handwriting of Samuel M. Williams, one of the company of Austin & Williams, colonial empresarios (except the last words “tanbien Junio-Junio Valen”), who acted under what was claimed an irrevocable power of attorney, in which Aguirre renounced to him all his rights and interests.
    5. Williams, as such attorney and party in interest, applied, if the title be genuine, to the alcalde at San Felipe de Austin, October 4, 1833, for title of possession to the eleven leagues in controversy on the San Gabriel, as the title now reads; and on the same day of the same year he applied on a copy of the same concession to the same alcalde of San Felipe de Austin (Lesassier) for the eleven leagues for the same Agui rre on the Brazos river, title to which was issued the same day (October 4, 1833).
    A Spanish copy of the protocol, recorded in Milam county in 1838, containing the words of the protocol of the Williamson county land as they now appear (except the last four lines, which are written in words which it was claimed validated the apparent alterations of the original), was read in evidence.
    It was claimed by appellant, that, no matter whether the alterations in the protocol were made according to law or not, they would not affect.the legality of the title as a title to Aguirre, contending that the question of legality of the change could not be raised in this case, and was foreign to the issue of- forgery.
    In 1830 Perfecto Valdez obtained a concession for eleven leagues of land, and with the permission of the empresario it was surveyed on the east bank of the Brazos river. The theory of the appellant, in accounting for the changes apparent on the face of the grant, was as follows: That Sami. M. Williams, the empresario, who usually prepared the land titles in his colony, wrote one for Valdez for the land surveyed for him on the Brazos, and had it ready to be signed by the alcalde and delivered to Valdez upon his complying with the usual conditions, and making application for the title; that it did not appear that Valdez ever made application for the title, and for this or some other cause it was not signed by the alcalde and delivered to him, as at first contemplated; that this blank, unsigned title being already written out in due form, and being upon stamp paper, which was valuable and difficult to procure, and not being needed as a title to Valdez, was utilized by Sami. M. Williams in preparing the Aguirre title; that he erased Yaldez’s name and substituted that of Aguirre; he also erased the river Brazos and substituted San Gabriel, and interlined Cow Bayou; that he also changed - some dates which corresponded with the concession and orders issued for Yaldez, so as to make them correspond with the Aguirre concession and orders; that it was thus changed from an unsigned title to Yaldez for eleven leagues of land on the Brazos, to an unsigned title to Aguirre for eleven leagues of land on San Gabriel and Cow Bayou; that these substitutions and interlineations were all noted at the foot of the title by Sami. M. Williams, and validated; that it was then signed in due form by the alcalde and assisting witnesses; and that in changing the Yaldez blank title,, so as to utilize it as a title to Aguirre, as above stated, Sami. M. Williams omitted in one place (in the habendum clause) to erase Yaldez’s name and substitute Aguirre’s, and it was signed by the alcalde, and now appears with Yaldez’s name in it. (This was urged as an objection to the title.) ■
    There was a great mass of evidence detailed on both sides, which the limits of a report, already transcended, will not permit to be detailed. The above, in connection with the statement made in Hanrick v. Cavanaugh, 60 Tex., 1, involving the validity of the same title, and with the following instructions asked by appellant and refused, must suffice. The charges thus asked and refused were as follows :
    “ Forgery is the making of a false instrument in writing without lawful authority, with intent to injure or defraud, purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected, any property whatever. He is also guilty of forgery, who, without lawful authority and with intent to injure or defraud, shall alter an instrument in writing then already in existence, by whomsoever made, in such manner that the alteration would (if it had been legally made) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected, any property whatever.
    “ 2. When forgery is sought to be established by circumstantial evidence alone, of an ancient document over thirty years old coming from the proper custody, and under which rights have been claimed for that period of time, the proof should clearly satisfy the mind of the fact of forgery before the fact is found.
    “ 3. The defendant in this cause has filed an affidavit charging that the original of the certified copy of the final title to Eafael de Aguirre, the testimonio of the power of attorney from Eafael de Aguirre to Samuel M. Williams, dated 5th of May, 1832, and the deed from Eafael de Aguirre to Asa P. Ufford, dated 1st of May, 1840, are forgeries. You, the jury, are instructed that the said affidavit of forgery is not evidence before you, and of itself constitutes no proof or evidence of forgery, and you will not consider it for any purpose whatever.
    “ 4. The plaintiff has placed in evidence before you —
    “ (1) A certified copy of the original grant to Eafael de Aguirre for eleven leagues of land, dated the 22d of October, 1833, for the land mentioned therein.
    
      “ (2) The testimonio of a power of attorney from Eafael de Aguirre to Samuel M. Williams, dated 5th of May, 1832, authorizing said Williams to sell said land.
    “ (3) A deed from Eafael de Aguirre, by his attorney, Samuel M. Williams, dated 1st of May, 1838, to Asa P. Ufford for the eleven leagues.
    “(4) A deed from Asa P. Ufford to Joseph Ufford, dated 11th of August, 1850, for the land in controversy, embraced in said eleven leagues of land.
    “(5) Deed from Joseph Ufford to Edward Hanrick, dated 9th of -, 1855, for said eleven leagues of land.
    “The foregoing papers (in writing), the jury is charged, vested in Edward Hanrick a good and valid title to said eleven leagues of land, and if you believe from the evidence that the. plaintiff is the heir of the said Edward Hanrick, then you will find a verdict for the defendant.”
    . . . (The tenth instructed the jury to the effect that the land office copy of the grant to Aguirre, and the several deeds under him in evidence, in connection with proof of plaintiff’s heirship, were sufficient to vest title in plaintiff unless the plea of forgery was established. It also informed the jury that the erasures, changes, obliterations and interlineations in the title were fully accounted for.)
    “There is no evidence before you, such as the law requires, tending to establish that a final title was ever issued upon the concession to Perfecto Valdez, or that such a title was ever delivered to him or to any one for him, nor can you infer that such title was in fact issued or delivered from the fact that Valdez had a concession and had a survey made and mapped. On the contrary, you are bound to presume, in the absence of the production of such final title, that none was ever issued and delivered.
    “11. The testimonio of the power of attorney from Rafael de Aguirre and others to Samuel M. Williams, dated May 5, 1833, and admitted in evidence before you as a link in plaintiff’s chain of title, having been passed upon by the court, and there being no evidence before you impeaching it, I instruct you that said testimonio stands before you as a valid, legal and sufficient link in plaintiff’s chain of title to the land in controversy, and you will so regard it.
    “ 12. The deed from Rafael de Aguirre by his attorney, Samuel M. Williams, to Asa P. Ufford, dated 1st day of May, 1838, has been admitted in evidence before you by the court, and there being no evidence before you impeaching it, you will consider it a valid, legal and sufficient link in plaintiff’s chain of title.”
    
      Walton & Hill, Goodrich & Clarltson, E. J. Gurley and D. G. Smith, for appellants,
    on the following proposition: “The plaintiff made out a case for recovery. The defendant did not by his evidence break down plaintiff’s case. The verdict and judgment are against the evidence, and without evidence to support the one or the other. The evidence to authorize a verdict and judgment declaring an ancient public archive of the government, evidencing private rights, a forgery must be clear, positive, convincing and satisfactory, to a fair, reasonable and unprejudiced mind,” cited: Briscoe v. Bronaugh, 1 Tex., 340; Davidson v. Edgar, 5 id., 496; Davis v. Loftin, 6 id., 501; Long v. Steiger, 8 id., 462; Johnston v. Smith, 21 id., 726-9; Willis v. Lewis, 28 id., 191; Howard v. Colquhoun, id., 146-8; Murchison v. Warren, 50 id., 33; Dailey v. Starr, 26 id., 565-6; Randall v. Collins, 52 id., 443; Muckleroy v. Bethany, 27 id., 551-2; Woodson v. Collins & Douglas, 56 id., 174-5; Dwyer v. Con. Ins. Co.. 57 id., 183-4; Portis v. Hill, 30 id., 529; Zapp v. Michaelis, 58 id., 275; Hanrick v. Jackson, 55 id., 25-33; Cox v. Cock, 59 id,, 524, and authorities; Hatch v. Dunn, 11 id., 717; Mapes v. Leal’s Heirs, 27 id., 849; Styles v. Gray, 10 id., 505-6; Wait’s A. & D., § 12, pp. 474-6, vol. 6, and the authorities cited; Bouvier’s Law Die., words Ancient Writings, vol. 1, p. 121, and authorities cited; § 2178, Pasch. Dig. Dec., and authorities therein cited, p. 161; Stroud y. Springfield, 28 Tex., 662-8; Chandler y. Heckling, 22 id., 41; G., H. & S. A. R’y Co. v. Bracken, 59 id., 73; Greenleve, Block & Co. v. Blum, id., 127; Clark v. Smith, id., 279; Burkett & Murphy v. Scarborough, id., 498, and authorities cited; Redus v. Burnett, id., 582.
    On the proposition that the court erred in excluding the correspondence of the former commissioner of the general land office (referred to in the opinion), they cited: Wells v. Fairbank, 5 Tex., 582; Maxey v. O’Connor, 23 id., 238; Dikes v. Miller, 24 id., 425; S. C., 25 Tex. Sup., 288, and authorities there cited.
    On the proposition that the court erred in refusing instructions asked by appellant, they cited: Cox v. Cock, 59 Tex., 524; Teal v. Terrell, 58 id., 261; I. & G. N. R’y Co. v. Stewart, 57 id., 170; Howerton v. Holt, 23 id., 61; McKinney v. Bradbury, Dallam, 442; Wright v. Thompson, 14 Tex., 563; San Antonio v. Lane, 32 id., 415, 416; Reid v. Reid, 11 id., 593; Mitchell v. DeWitt, 20 id., 299; Johnson v. Timmons, 50 id., 534-6.
    
      A. W. Terrell (with Fisher & Makemson), for the appellee,
    on the proposition that there was evidence sufficient to sustain the verdict, and tending to show that the grant was originally a grant to Perfecto-Valdez, and forged so as to appear a title to Aguirre, after the signatures of Lesassier and the assisting witness had been obtained, cited: Hanrick v. Cavanaugh, 60 Tex., 1; Hill v. Nisbett, 58 Geo., 589; Phillips on Ev., vol. 2, p. 205; Note 197, Cowen & Hill’s notes to Phillips on Ev., part 2, vol. 4, p. 366; 2 Phillips, Ev., Cowen & Hill’s notes, p. 482; 1 Wharton, p. 621; Ely v. Ely, 6 Mass., 439; Montag v. Sinn, 23 Ill., 551; Duv v. Jewell, 18 N. H., 340; Huntington v. Finch, 3 Ohio, N. S., 345; Warring v. Smith, 2 Barb. Ch. R., 119; Maybee v. Sniffin, 2 E. D. Smith (N. Y.), 1; Jackson v. Osborne, 2 Wend., 555; Neil v. Case, 25 Kan., 510 (37 Am. L. Rep.); Ferris v. Carver, 10 Cal., 589; Robie v. Sedgwick, 35 Barb. (N. Y.), 319; Bunting v. Young, 5 Watts & Serg., 183; 9 Dana, 452; Ley III, title 18, part 3; Ley XII, title 18, part 3; Ley I, title 23, lib. 10, Nov. Rec. and Code de Com., art. 240; Dictionary of Spanish Academy, words Raspadura, Entrerenglonar, Emienda, Salvar, Sopentada, Testadura; Bell v. Quick, 1 Green, 312; Helm v. Hundly, 1 Litt. (Ky.), 219; Nunnery v. Coulton, 1 Hawks, 222; Wright v. Wright, 2 Halst., 175; Lewis v. Payn, 8 Cow., 71; Provost v. Gratz, Pet. C. C., 369; Morris v. Vanderen, 1 Doll., 67; Jackson v. Malin, 15 Johns., 293; Robinson v. Myers, 67 Penn. St., 9; Scrimer v. People, 33 Ill., 276, to the effect that what purports to be a record may be shown to be forged or altered; Starkie on Ev., 504; 1 Greenl., Ev., §65; Henderson v. State, 14 Tex., 513; Watson v. Robertson, 15 Tex., 333; R. S., 3103.
    On the proposition that the evidence tended to show that no legal testimonio of a grant to the land on the San Gabriel as a grant to Rafael de Aguirre ever issued, without which no title could vest, he cited: Titus v. Kimbro, 8 Tex., 212, 213, 217.
    On the proposition that the words in the emendation clause of the grant, no matter when or by whom written, did not validate the instrument, so as to make it an authentic act under laws in force, the words scraped off not being revealed and invalidated in terms by the notary, he cited: Escreche (Madrid Edition), head, Instremento Publico, pp. 336 et Ley—; Ley III, tit. 18, Part 3—; Ley 12, tit. 19. d, Part 3; Ley 1, tit. 23, lib. 10; Nov Rec y cod de com., art. 240, words “ Raspadura,” “ Tostadura,” “ Enterenglonor,” “ Emienda,” “ salvar,” Sopuntado, as defined in the dictionary of the Spanish Academy.
    On the proposition that an ancient instrument to prove itself must appear on its face to be genuine and free from suspicion; that when changes, erasures and interlineations appear, the time when they were made becomes a.question of fact for the jury, with no presumption as to time when they were made, if the changes are in favor of one claiming a benefit under them, and that he who propounds a deed suspicious on its face must show when changes appearing there were made, he cited: Hill v. Nisbett, 58 Geo., 589; Walter v. Short, 5 Gillam, 252; Wilson v. Henderson, 9 S. & M., 375; Barnham v. Ayer, 35 N. H., 351; Maybee v. Sniffin, 2 E. D. Smith (N. Y.), 1; Jones v. Stewart, 23 Pa. St. (11 Harris), 244; 1 How., 104; Cowen & Hill’s notes on Phillips on Ev., part II, vol. 4, p. 373, note 200; id., 366, note 197; Lan v. Mumma, 34 Pa., 274; Acker v. Ledyard, 8 Barb. Sup. Ct. Rep., 514; Huntington v. Finch, 3 Ohio (N. S.), 445; Matthews v. Coulter, 9 Miss., 705; Bailey v. Taylor, 11 Cowen, 531; Heffinger v. The State, 16 S. & R., 44; Commissioners v. Hannon, 1 N. & M., 554; Jackson v. Osborne, 2 Wend., 555; Neie v. Case, 25 Kansas, 510 (37 Am. L. Rep.); Tyree v. Rives, 57 Ala., 173; Pyle v. Oustatt, 92 Ill., 209; 1 Lit. (Ky.), 219; 1 How., 104; 5 Bart., 279; 3 Ohio (N. S.), 455; Maybee v. Sniffin, 1 N. Y. (2 G. Smith); 15 Johns., 293; Pet. C. C., 369; Scrivner v. People, 33 Ill., 276e.
    
      On the proposition that title to the first grant of eleven leagues on the Brazos, of date October 4, 1833, could not be lost by abandonment, the fee having vested, he cited: Williams v. Conger, 49 Tex., 582; Ferris v. Carver, 10 Cal., 589; Bunting v. Young, 5 Watts & Serg., 188; 9 Dana, 452; Robie v. Sedgwick, 35 Bart. (N. Y.), 319; Proprietors of Lock v. N. & R. R. Co., 104 Mass., 1.
    That abandonment, even of an inchoate title, would be a fact for the jury to ascertain, not of law for the court, he cited: Hollingsworth v. Holshousen, 17 Tex., 41; Russell v. Davis, 38 Cow., 562; Philadelphia v. Riddle, 25 Pa. St. (Casey), 259; 15 N. H., 412; Keene v. Cannovan, 21 Cal., 303; Davis v. Pearly, 30 Cal., 630.
   Gooch, Special Judge.

This action, which is in the usual form of trespass to try title, was brought in the district court of Williamson county, on the 12th day of November, A. D. 1877, by E. G. Hanrick, appellant, against W. A. Dodd, appellee. Appellant claimed title under an eleven-league grant, purporting to have been extended by Luke Lesassier, alcalde of the municipality of San Felipe de Austin, to Bafael de Aguirre, on the 22d day of October, A. D. 1833. The appellee Dodd answered by a plea of not guilty, and set up other defenses, which need not be stated. To the instrument evidencing the original grant, the appellee interposed an affidavit of forgery. The case was tried by a jury during the month of February, A. D. 1884, and resulted in a verdict and judgment for appellee. The court submitted no other issue to the jury than that of the alleged forgery of the instrument attacked by the affidavit, and by their verdict they found it to be a forgery.

The very able and exhaustive arguments, oral and written, of counsel for both parties, have been addressed chiefly to this question.

The first proposition made by the appellant, under his assignment of error, is in substance that the verdict of the jury, on the issue presented, is not supported by the evidence. If this proposition is sustained, it will require a reversal of the judgment. If it is not, and if it is supported by the evidence, it is conclusive against appellant’s right to recover, unless some error was committed by the court, to his prejudice, during the trial. A determination of this question requires an examination of the evidence. The title to Bafael de Aguirre purports to have been extended by Luke Lesassier, alcalde, by virtue of a concession in sale by the governor to Thomas de La Yega, Jose Maria de Aguirre and Bafael de Aguirre, for eleven leagues of land each, in a single instrument. A copy of it, and not the original, was made a part of the title under consideration. This, however, has been held to constitute no valid objection to it. Hanrick v. Jackson, 55 Tex., 17; Hanrick v. Cavanaugh, 60 Tex., 1.

It has also been held, with reference to this particular title, that the alcalde was clothed with authority to extend it to the interested party, and that he must determine how and when he had done so; and that, though he ought not to have extended more than one title on the same concession, if he did do so, it would be only an erroneous exercise of authority, and therefore not void. Hanrick v. Jackson, 55 Tex., 17. In the case now before us, the appellee contends, not that the title was erroneously or fraudulently issued by the alcalde, Lesassier, but that it was not issued at all, to Rafael de Aguirre, or by virtue of the concession to him. It was shown by the evidence of appellee, that, at the instance of the same attorney, two final titles Avere extended to Rafael de Aguirre to separate and distinct surveys, by virtue of one and the same concession, by the same alcalde, Avho Avas in both assisted by the same witnesses. The first title Avas for eleven leagues on the Brazos river, dated on the 4th day of October, A. D. 1833; and the second title for ten leagues on the San Gabriel creek (noAV in Williamson county), and one league on Coav Bayou (now in Falls county), dated on the 22d day of October, A. D. 1833, or eighteen days later than the first. The last title was all in the handwriting of Samuel H. Williams (except the last four Avords of the emendation clause). He Avas one of the company of Austin and Williams, empresarios. He acted for Eafael de Aguirre, under an irrevocable power of attorney to himself with authority to sell,—an instrument Avhich is held by our courts to be an indefeasible conveyance. He applied on the same day —October 4, A. D. 1833,— in separate applications, for titles of possession to each of the eleven-league grants, stating that one survey Avas on the Brazos river, and the other on San Gabriel creek and Coav Bayou. On that day, juridical possession Avas delivered to him, as attorney, and final title extended, at his instance, to Eafael de Aguirre, to the eleven leagues of land on the Brazos river. The title involved in this suit appears to have been extended eighteen days afterwards.

The appellee insists that the alcalde did not extend both titles to Aguirre; but that the final title, which now appears to have been extended to him, to the second eleven-league grant, which he was not entitled to, was, in fact, extended to Perfecto Valdez. In further support of his theory, he introduced the original application of Perfecto Yaldez for a concession of eleven leagues of land, bearing date July 10, A. D. 1830; the concession to him, bearing date July 13, A. D. 1830; the consent of the empresarios, Austin and Williams, to the location of the survey within their colony; a copy of the field notes of the survey on Brazos river; and maps showing that it was located there. bfo final title appears to have been extended under this concession (unless the one in controversy was so issued), and no reason is apparent why it was not done. It was shown by photographic copies, and by the testimony of General De Bray, Spanish clerk of the land office, that the original, or matrix, of the final title in controversy, now in his custody, has been changed in some respects since it was originally written, by erasures, substituted words, and interlineations. The material words erased or changed are the date of the concession to Perfecto Yaldez, the locality of the land, and his name. In their stead were inserted the date of the Bafael de Aguirre concession, the locality of the land, and his name. Without these erasures and alterations, it would have made a complete and perfect title to the Perfecto Yaldez grant; and would have indicated that the alcalde had proceeded regularly and faithfully in the discharge of his official duties; and that the parties, witnesses and alcalde did not engage in a fraudulent combination to violate the law, and swindle the government under which they lived. The title to the eleven-league grant, situated on the Brazos river, which was extended to Bafael de Aguirre on the áth day of October, A. D. 1833, appears to be regular, in strict conformity to the law, and free from suspicion. There is no evidence in the record that this survey ever reverted to the government, or that the legal title is not nowin the claimants under the concession by virtue of which the title issued. The appellee also introduced a certified copy of a grant of eleven leagues to Miguel Babago, for whom Samuel M. Williams was attorney. The field notes of this survey call for the Bafael de Aguirre survey on the Brazos river, and the maps show that they are connected. The application of Williams to have this survey made was dated December 3, A. D. 1833, subsequent to the date of both titles to Bafael de Aguirre. In it he asks that the Babago grant “ be located on the right bank of the Brazos river, adjoining and above another tract of the same description, for Don Bafael de Aguirre.” The appellee also introduced a certified translated copy of the Bafael de Aguirre title, which was made in the year 1855; and a certified copy of the last page of the same title in Spanish, made in the year 1838; in neither of which is there an emendation clause at the foot of the title, though the face of the title appeared then as it does now.

The appellant, Hanrick, offered evidence showing that the signatures of the alcalde, Luke Lesassier, and of the assisting witnesses, Robert Peebles and C. C. Givens, were genuine; that Lesassier usually signed his name about one inch below the last line of final titles extended by him; that in this title his name was about the usual distance from the last line of the emendation clause; that the emendation clause (except probably the last four words) was in the same handwriting as the body of the instrument, and appeared to have been written about the same time and with the same kind of ink, though probably with a different quill pen or the same pen newly sharpened, and that if this clause was obliterated, Lesassier’s name would be about double the usual distance below the last line of the title. Col. E. M. Johnson, the surveyor-general of Austin and Williams’ colony, testified that he was seventy-nine years old; that he did not have his field-book of surveys before him, but in its absence he remembered a survey of ten leagues of land on the San Gabriel, and one league at some other place (where, he did not remember), made by him under the Eafael de Aguirre concession, in the year 1833. That the land was selected by Eobert M. Williamson, as agent of Ed. Hanrick, who was associated with Dr. Hoxey and a Mr. ITfford. That he knew of another eleven-league survey, made under the same concession on the Brazos river. It was made by William Moore, his deputy, and was selected by Samuel M. Williams.

It does not appear from the evidence that any of the parties for whom Col. Johnson made the survey had any interest in the grant prior to May 1, 1838; but it does appear that Samuel M. Williams, who selected the survey on the Brazos, was then the real owner. The evidence tends to show that final titles were sometimes signed by Luke Lesassier, alcalde, with blanks in them.

The civil law was extremely strict in guarding against fraudulent alterations of public documents. The officers acting under it will be presumed to have been familiar with its requirements. The other titles extended by Lesassier show that he was familiar with the law, and generally conformed to it.

To be authentic, the civil law required that a public document be cleanly written, without blanks, erasures, obliterations, interlineations or corrections, especially in the substantial parts; or where corrections were made, they should be authenticated at the foot by the officer. And not only should the words substituted and validated be shgwn, but also the words abandoned and made void. Escriches Dic. Leg. Ins., pp. 886-888; Hanrick v. Cavanaugh, 60 Tex., 1.

This rule was applicable not only to testimonios, but also to the matrix or protocol. If one appears to be changed, or if suspicion is cast on it, by reason of erasures or interlineations, its verity may be shown by the production of the other. It is said: “If the original copy or testimonio is in existence, the fact of the reproduction or omission of words written or added may assist to ascertain whether the alteration was made before or after the closing and signing of the principal document (or matrix) and consequently it will be possible to decide whether there was fraud or a mere omission.” Id., page 888.

In this case it appears that the part of the matrix which would have made the Perfecto Valdez title complete has been changed, so that there is no final title to that grant, but there are two final titles under the Rafael de Aguirre concession to separate eleven leagues. Notwithstanding this, and the further fact that the matrix of the title in controversy (which is claimed to be the second one to Aguirre on the same concession) is attacked as a forgery, the original copy or testimonio is not produced. It is not shown to have ever existed, nor that it is lost or destroyed, nor is it otherwise accounted for. If it had been produced, and appeared not to be altered (and it probably would not have been if it was a true copy of a genuine original), it would be conclusive that the matrix now attacked was altered before and not after its execution. As early as the year 1838 the dues were paid to the republic of Texas, and credited upon a certified copy of the title from the land office, and not upon a testimonio, as was customary.

That Samuel M. Williams would apply to the alcalde, L. Lesassier, for the extension of title and possession to two separate eleven-league grants, on the same day, by virtue of the same concession for one only, in open violation of law, does not seem reasonable. And if he had done so, that the officer of the government, assisted by the same two witnesses, would grant it, and extend titles to both, seems less probable. That the owners of the Perfecto Valdez concession would expend so much time and money in procuring a concession, and a survey under it, for nearly fifty thousand acres of land in a solid body, and abandon it, when only a small effort and outlay was necessary to procure final title, is difficult to appreciate and realize in the absence of explanation. The alcalde, L. Lesassier, does not seem to have had any motive or interest in granting twenty-two leagues of land by virtue of a concession for eleven only. If Samuel M. Williams desired to procure two eleven-league grants, by deception and fraud, on a concession for one, he must have known that it would surely and speedily have exposed him to have made applications for both on the same day. And yet the title papers appear to have been signed by the proper officer; his signature is about the usual distance from the last line of the instrument attacked. The protocol was deposited in the land office, probably in its present condition in so far as the body of the instrument is concerned, at least forty-six years ago; and the claimants under it have paid taxes on it from time to time for more than a quarter of a century. There is very strong evidence to support the validity of the title; but the evidence that it is a forgery is no less strong and cogent. After a careful review and consideration of it, we all concur in the opinion that the verdict is not manifestly against the preponderance of evidence, as it should be to justify us in setting it aside, but that it is fairly supported by it. G., H. & S. A. R’y Co. v. Bracken, 59 Tex., 71; 59 Tex., 124; 59 Tex., 577; Zapp v. Michaelis, 58 Tex., 270; Willis v. Lewis, 28 Tex., 191; Hanrick v. Cavanaugh, 60 Tex., 1.

It is urged by the appellant that it is probable that the first grant of eleven leagues to Rafael de Aguirre, situated on the Brazes-river, was abandoned and not perfected. Our statutes (Act of Hay 13, 1846, Pasch. Dig., art. 3715) made certified copies of all records of the land office prima facie evidence in all cases where the originals would be evidence; and the original of the Bafael de Aguirre title of October 4, 1833, is regular in every respect and deposited in the proper office. The evidence of its existence is undisputed, and there is none against it. Under the Mexican law, as under the common law, an estate granted by the government cannot after-wards be divested upon mere surmise or suggestion. A formal conveyance, or a regular proceeding, is requisite. Dykes v. Miller, 25 Tex. Sup., 289; Smith v Shackleford, 9 Dana, 452; Robie v. Sedgwick, 35 Barb. (N. Y.), 329; Ferris v. Coover, 10 Cal., 617; Montgomery v. Bevans, 1 Saw., 653.

If it be contended that the first grant may be regarded as abandoned, because the evidence does not show that a testimonio ever issued, the same may be said of the last grant. But where a matrix is formal, and is deposited in the proper custody, the presumption will be indulged that a testimonio was issued, as it should have been “ to serve the grantee for a title.” Article 8 of Instructions to Commissioners of Decree of September 4, 1827; Laws of C. & Tex.,, 70; Pasch. Dig., art. 618; Titus v. Kimbro, 8 Tex., 215.

The appellant assigns as error the admission in evidence, over his objection, of the preemption papers of the appellee Dodd, to one hundred and sixty acres of the land in controversy. While it is true that, if plaintiff’s title was a forgery, possession either under a claim of right or as a trespasser would be sufficient to defeat a recovery, yet it was proper to permit the occupant to show the character of his possession and the amount of land he actually claimed and occupied; and particularly in view of the claim by appellant for damages for use and occupation. If the title was not a forgery, the land was not subject to pre-emption, and the location and survey would be no evidence of title. Clark v. Smith, 59 Tex., 275; Buford v. Bostick, 58 Tex., 63; Sutton v. Carabajal, 26 Tex., 500.

The appellant assigns as error the admission in evidence of the title to Miguel Rabago; the title to Rafael de Aguirre on the Brazos river; the title to Thomas de la Vega on the Brazos river; the title in part to Perfecto Valdez on Brazos river, and the admission of sketches and maps from the general land office, and other evidence of like character. We are of opinion that all this evidence was properly admitted, to be considered by the jury in connection with the other facts and circumstances relating to the issue of forgery, which could only be established, if at all, by circumstantial evidence. Hanrick v. Cavanaugh, 60 Tex., 1; R. S , arts. 2253-2259 and 3808; Hill v. Nisbet, 58 Ga., 589; Robinson v. Myers, 67 Penn., 9.

The appellant also assigns as error the refusal of the court to admit in evidence the correspondence had in the year 1840 between J. P. Borden, commissioner of the general land office, and James Hewlett, -a public surveyor. It was offered as tending to show that the eleven-league grant on the Brazos river, the first one extended to Rafael de Aguirre, had been abandoned. We think the evidence was properly excluded. It was hearsay. If it had not been, a title which .had vested could not be divested by a mere declaration of abandonment. H. & T. C. R. R. Co. v. McGehee, 49 Tex., 489; Hanrick v. Cavanaugh, 60 Tex., 1, and authorities hereinbefore cited.

The appellant insists that the court erred in excluding, as evidence, a copy of judgment, wherein Joseph Ufford was plaintiff, and John Dyches et al. were defendants, rendered in the year 1855 by the Hnited States court at Galveston, Texas. It did not appear therefrom or otherwise that the appellee was a party to the suit, or in privity with any one who was; nor that the title in controversy in this suit was involved in that suit, and it was properly excluded. Dixon v. Zadek, 57 Tex., 581, and authorities cited.

The special charges requested which were given were very properly given; and those refused had either been incorporated in the main charge, or were upon the weight of evidence, or did not contain correct legal propositions. There remains but one other question which we deem necessary to consider. It was urged with great earnestness and ability. It is contended that sec. 2, art. 14, of the constitution of 1875 of Texas, prohibited appellee from pre-empting any part of the land included within the ten leagues on the San Gabriel, because there was evidence in the county records and in the general land office that it had been appropriated. The clause of the constitution relied on to sustain this view reads as follows: “ All genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented only upon vacant and unappropriated public domain; and not upon any land titled or equitably owned under color of title from the sovereignty of the state, evidence of the appropriation of which is on the county records or in the general land office; or when the appropriation is evidenced by the •occupation of the owner or of some person holding for him.” The pre-emption was located before the adoption of this provision, as shown by the evidence. If this is not true, and assuming that preemptions are intended to be included (though not specified), we think this rule or prohibition can only be invoked in favor of those who have either a legal or equitable title or claim. A forged title would not be of either class. Surely it was not intended to sanctify and validate forgery, perpetrated against the government. The latter part of the section, relating to the evidence of appropriation, is not intended to provide that such appropriation shall be conclusive •evidence of title, but rather that if title exists, evidence of the facts mentioned shall be evidence of notice to owners of subsequent locations, and will preclude them from making any. defense where good faith and want of notice would be required.

[Opinion delivered June 25, 1884.]

We find no error for which the judgment should be reversed, and it will be affirmed.

Aeetrsied.

Chief Justice Willie and Associate Justice West did not sit in this case. Hon. John Young Gooch and Hon. D. M. Prendergast were appointed to sit as judges in their stead.  