Hunnicutt v. Peyton, 102 U.S. 333 (1880)
U.S. Supreme CourtHunnicutt v. Peyton, 102 U.S. 333 (1880)
Hunnicutt v. Peyton
102 U.S. 333
1. Exceptions reserved at the trial of the cause may, within such time thereafter during the term as the judge shall deem reasonable, be reduced to form and presented to him for signature, and they are not waived by suing out a writ of error before his signature is obtained.
2. Where, under such circumstances, bills of exceptions are signed during the term, it is not necessary to render them effective that they be antedated, or ordered to be filed nunc pro tunc as of a time during the trial.
3. A party who, under article 24 of the Mexican law of 1825, procured from the government by purchase a grant of public lands could alienate it before they were selected, and his formal act of sale, with a power to his alienee to obtain the title of possession, constituted the latter the absolute owner of them when he, by the proper officer, was furnished with the evidence of title and put in possession. Where, therefore, the grant contained no specific description of the lands, but contemplated the selection and location of them, the title of extension, when given to the alienee, is complete.
4. In questions of private boundary, the declaration of a deceased person of particular facts, as distinguished from reputation, is not admissible unless it be shown that he had knowledge of that whereof he spoke and was then on the land or in possession of it, and was pointing out and marking the boundary or discharging some duty in relation thereto. A declaration merely reciting something past is within the rule which excludes hearsay evidence.
5. The decisions of the Supreme Court of Texas examined and held to be in harmony with this ruling.
6. The possession of a person who, under color of title, enters upon vacant lands and holds adversely is construed to include so much as is within the boundaries of his title, and to that extent the true owner will be deemed to be disseised. But if the latter be in actual possession of any part of the lands whereon the entry is made, his constructive seisin extends to all not in fact occupied by the intruder.
This was an action brought by Bailie Peyton and others against Hunnicutt and others to recover possession of a tract of land in the County of Falls, Texas, being "four leagues of land on the east of left bank of the Brazos River, known as the Gregorio Basquez survey of four leagues," and more particularly described in the amended petition as beginning at a stake marked "P" on the east bank of the River Brazos, in the County of Falls, State of Texas, at the point where the upper line of the Austin & Williams reserve, on the east side of said river, intersects said river; running thence with said upper
line of the reserve N. 71 E. 20, 220 varas to a stake, and crossing Isaac's Creek; thence S. 19' E. 5,000 varas to another stake for the third corner; thence S. 71 W. 18,320 varas, covering again the aforesaid creek to a stake on the Brazos River for the fourth corner; thence up said river to the place of beginning, covering an area of four leagues, fronting on said river and lying within said Austin & Williams reserve, immediately below and adjoining said upper line of said reserve.
The defendants pleaded the general issue and the statute of limitations. Sundry exceptions were taken during the trial. The jury returned a verdict for the plaintiffs, on which judgment was rendered. The defendants sued out this writ.
They assign for error that the court erred:
I. In admitting the documentary evidence set out in their bill of exceptions, being certified copies of certain papers, and in holding that they vested a legal title in Jonathan C. Peyton. The copies are as follows, the plaintiffs offering in evidence the original testimonio of their title:
"First, a power of attorney, with power of substitution, from Gregorio Basquez to Jayme Hartz, dated the twentieth day of September, eighteen hundred and thirty-one (1831)."
"Power of Attorney, with Power of Substitution, from"
"Gregorio Basquez to Jayme Hartz"
"Second stamp -- twelve reales"
"Legalized for the State of Coahuila and Texas for the years 1828, '29, '30, & '31."
"JESUS DE LOS SANTOS COY"
"In the town of Nacogdoches, on the twentieth day of September, 1831, before me, the citizen Manuel de los Santos Coy, sole constitutional alcalde of the aforesaid town, and instrumental witnesses hereinafter named, besides those of my assistants with whom I act agreeably to the law, appears the citizen Gregorio Basquez, of this jurisdiction, in this proper person, whom I declare to know, and who says that by these presents, he executes, gives, and confers all his power, full, ample, and sufficient, whatever may be required by law and is necessary or may be of value, to Don Jayme Hartz, of this jurisdiction special, that he, in representations and use of the rights and interests which pertain to the grantor,
may solicit of the person or persons authorized to that effect the possession and titles of eleven leagues of land which he has obtained from the supreme government of the state by way of purchase, with the authority to empower him to solicit in the place or places which best suits him, together or separate, according to the tenor of the concession of the date of 11th March of this year, which I declare to have seen."
"And the grantor has placed in the hands of his attorney that he may do and perform, in the name of the grantor, all whatsoever he might do were he actually present, since for all as aforesaid, annexed, concerning, incident, and pertaining, he gives and confers the most ample and extensive power, without any limitation whatever and without which, by default of any clause or requisite, he gives to this power all the force and effect, whatever the same may be, as if the same was herein literally written and inserted."
"That he may appoint substitutes, revoke the same and appoint others anew, with free, frank, and general administration in form, since for all he relinquishes by this act whatever the law permits, and acknowledges all whatsoever his attorney may do or perform by virtue of this power of attorney, binding his person and property in every form, and renounces all laws in his favor."
"In testimony whereof thus he executes, as he does not know how to write, he makes the sign of the cross; there were present, as instrumental witnesses, the citizens Martin Ybarvo, Antonio Menchaca, and Carlos Gil, residents of this town, and those of my assistants in the form prescribed by law, to which I certify."
"MANUEL DE LOS SANTOS COY"
"Sign of the cross of --"
GREGORIO BASQUEZ +
"Ass. witness: JESUS DE LOS SANTOS COY"
"Ass. witness: VITAL FLORES"
"This testimonio agrees with the original which remains in the archive of the public documents of this municipality, which goes truly and legally compared and corrected, and at its transcribing, correction, and comparing the same, there was found the same instrumental witnesses who were present at its execution, besides those of my assistants, with whom I act in the form prescribed by law, to which I certify."
MANUEL DE LOS SANTOS COY
"Ass. witness: JESUS DE LOS SANTOS COY"
"Ass. witness: VITAL FLORES "
"Second, an act of sale by Gregorio Basquez to the said Jayme Hartz of his concession in sale, which had been made to him by Santiago del Valle, on the eleventh day of March, eighteen hundred and thirty-one (1831), bearing date Sept. 22, eighteen hundred and thirty-one (1831)."
"Act of Sale, Basquez to Hartz"
"Third stamp -- two reales [STAMP] For the years 1830 and 1831"
"MOST EXCELLENT SIR -- Gregorio Basquez, a native of the City of Mexico and now residing in this town, with the due respect to your Excellency I would represent that understanding the provisions of the twenty-fourth article of the colonization law of the state of 24th March, 1825, and in virtue of being a native Mexican, with due respect to your excellency, I pray you be pleased to grant me in sale eleven leagues of land on the vacant territory of this department, with the privilege of selecting them together or separate, or in distinct places, as may suit me, with the understanding that I offer to settle and cultivate them as customary, that it may be to the purpose within the term which the law prescribes, making the payments of its value on the terms and at the places designated in the twenty-second article, and to sustain the right of the country, and of the state, and all other that may be in conformity with the laws which govern us and under their protection."
"I pray your excellency be pleased to do as aforesaid, in which I will receive favor."
"NACOGDOCHES, Sept. 28, 1830."
"LEONA VICARIO, March 11, 1831"
"In conformity with the twenty-fourth article of the colonization law of 24th March, 1825, I grant by sale to the petitioner the eleven leagues of land that he solicits on the vacant territory of the state at the place that may best suit him, after the commissioner of the supreme general government shall have set apart a sufficiency of land for the payment of the debt due by the state to the Federation. The commissioner for the partition of land in the enterprise to which pertain the land solicited by the petitioner, and in his default, or that the same not being embraced by any enterprise whatever, the first or sole alcalde of the respective jurisdiction will comply with the orders on the subject and put him in possession of said leagues, and issue the proper title, previously classifying the quality of them; for according to their designation he shall satisfy
the state, for the payment of which I concede him the times designated in the twenty-second article of the aforesaid law."
"Let a copy of his petition and this decree be given by the secretary of state to the interested party, so that upon application with it to the commissioner it may have the desired effect."
"SANTIAGO DEL VALLE, Secretary"
"A copy of the original on file in the archives of the office of the secretary of state, in my charge, from whence it was taken by orders of his excellency the governor."
"LEONA VICARIO, March 14, 1831."
"SANTIAGO DEL VALLE, Sec'y"
"Second seal -- twelve reales"
"Furnished for the State of Coahuila and Texas, for the terms 1828 and '29."
"By the commissioner,"
"JESUS DE LOS SANTOS COY"
"In the Town of Nacogdoches, the twenty-second day of the month of September, 1831, before me, citizen named de los Santos Coy, sole constitutional alcalde of the said town, and the instrumental witnesses, whose names appear at the end of this document, assisting me to authenticate the same in the absence of a notary appointed conformably to law, appeared the citizen Gregorio Basquez, of this district, in whom I placed confidence and with whom I am personally acquainted, and said that embracing the right which the twenty-seventh article of the colonization law of the state of the 24th of March, 1825, gives him, he applies for the present order of sale by which he has sold really and publicly in fee and for ever Don Jayme Hartz of this vicinity, as follows:"
"A grant of the supreme government of the state dated 11th of March of the present year of eleven leagues of land located on the public domain in this department, which was sold him by virtue of the twenty-fourth article of the colonization law above cited, with the same conditions, privileges, and obligations which were imposed upon the petitioner for whose possession and title he has granted a special power to the same purchaser, dated the 20th of the present month and the term of our Lord already given, for the price and sum of one hundred and fifty dollars, which he acknowledges having received in current coin to his satisfaction, wherefore he renounces the laws of non numerata pecunia no entrego e prueba, it
being an express condition that the purchaser shall pay the costs of the surveyor, commissioner, paper, sealing, enrolling of the titles, and the claims of the state for the usual price of the lands conformably to its quality, and for all the legal charges that may be considered as an augmentation of the price mentioned above in the sale by the said commissioner, and declared that this is the just value of the said lands; but if they are worth more, he makes a surplus and remainder, a pure, more perfect, and irrevocable gift and donation to the purchaser and surrenders the right called inter vivos; and for the security and surety of this sale he pledges the personal property that he now has or may have, and with it he submits himself to the law and jurisdiction of the judges and justices of the state, and particularly to those in this town, to whom he gives the same competency for exercising every right and executive obligation as if their decrees were authoritative judicial decrees. He renounces his proper judicial domicile and vicinity, the law si cum . . . de jurisdictione omnium judicum with the ['general'] of the right in respect to form."
"In testimony of which, as the petitioner was not able to write, he made a cross, the citizens Martine Ubarvo, Antonio Menchaca, and Charles Gil, present and living in the said town, instrumental witnesses with myself and those assisting me in the form prescribed according to law, to which I hereby certify."
"MANUEL DE LOS SANTOS COY"
"Sign of the cross of --"
"GREGORIO BASQUEZ +"
"De asistencia: JESUS DE LOS SANTOS COY"
"De asistencia: VITAL FLORES"
"I have compared this testimonial with its original, which is placed in the archives of the public instruments of this municipality and which is faithfully and legally corrected and compared, and at the copying, correcting, and comparing of which were present as instrumental witnesses the same as are attached to this grant, besides those assisting me authenticating in the form prescribed by law, to which I certify."
"MANUEL DE LOS SANTOS COY"
"De asistencia: JESUS DE LOS SANTOS COY"
"De asistencia: VITAL FLORES"
"Third, a substitution of Jonathan C. Peyton by Jayme Hartz, to be the attorney of Gregorio Basquez, bearing date March 2 (1832), eighteen hundred and thirty-two. "
"In the Town of San Felipe de Austin, on the second day of March, 1832, before me the citizen Horatio Chriesman, first alcalde of the municipality, and witness Jayme Hartz, a resident of Nacogdoches, exercising the authority conferred on him by the preceding power of attorney, consents to substitute it in all and for all, on Jonathan C. Peyton, of this jurisdiction, to whom he relinquishes and accordingly does relinquish, binding the property bounden in said power of attorney, and agreeing to the substitution in form and signs it, whom I declare to know, there being as witnesses Don Amos Gates and Samuel Gates, residents of this colony."
"Ass. witness: FRANCIS ADAMS"
"Ass. witness: HYMAN HERTZ"
"Fourth, an act of sale of the concession of Basquez, by Jayme Hartz to Jonathan C. Peyton, bearing date March 2 (1832), eighteen hundred and thirty-two."
"Sello segundo -- doce reales"
"Furnished for the State of Coahuila and Texas for the terms 1828 and '29, '30, and '31."
"In the town of San Felipe de Austin, 2d of March, 1832, before me, the citizen Horatio Chriesman, first alcalde for this municipality, and the instrumental witnesses which were named at the conclusion of this paper, besides those assisting me to give it authenticity in the absence of a notary, appeared the citizen Jayme Hartz, of Nacogdoches, in whom I have confidence and with whom I am personally acquainted, and said he acknowledges the present agreement, and has sold really and publicly, in fee and forever, to the citizen Jonathan C. Peyton, of this vicinity, a grant of the supreme government of the state, dated 11th of March, the year last passed, of eleven leagues of land located on the public domain of this department, which was sold to the citizen Gregorio Basquez, of the municipality of Nacogdoches, by virtue of the twenty-fourth article of the colonization law of the 24th of March, 1825, which, by a public instrument of sale dated 22d September, 1831, and one which is authentic, having seen it myself, he transferred, confirmed, and sold the said grant of eleven leagues of land to your petitioner, by which possession and title he granted him especial power under
date of the same month and year, and in which I have confidence, having seen it also, and which is hereby transferred to the purchaser, and which documents your petitioner will place in his hands, and he hereby concedes to him the said grant of eleven leagues of land upon the same conditions, privileges, and obligations that were imposed upon the said Gregorio Basquez by the governor, for the price and sum of five hundred dollars, which he acknowledges to have received in the current coin to his full satisfaction; upon which he renounces the laws non numerata pecunia no entrego e prueba, it being upon the express condition that the purchaser will pay the charges of the surveyor, commissioner, papersealing, recording of title, and claims of the state for the original price of the land conformably to its quantity, and for all other legal charges which may be considered as an augmentation of the said price for which he has sold the said grant, and he declares that this is the just value of the said lands, but if they are worth more or less, the excess or surplus he makes a gift or donation to the purchaser pure, more perfect, and irrevocably; and for the sanctity and security of this sale he binds his person and property that he has or may have, and with them submits himself to the jurisdiction and judgment of the tribunal which in this matter ought to adjudicate, and he gives them the same competency for exercising every right and executive obligation as if they were decrees authoritatively passed and properly adjudicated."
"He renounces all the laws which could favor him and prevent his general renunciation. In testimony of which I grant this and name with myself the instrumental witnesses, D'n Amos Gates and Samuel Gates, citizens of this municipality, to which I certify as well as those assisting me."
"De Asistencia: OLIVER JONES"
"De Asistencia: FRANCIS ADAMS"
"TREASURY DEPARTMENT, OFFICE OF COMM'R OF REVENUE"
"Sept. 19, 1840"
"Received of H. W. Raglin the sum of twelve hundred dollars in the promissory notes of the government, being the amount of dues upon the within fifty labors of arable land and ten hundred and twenty-five labors of pasture land granted to Gregorio Basquez, title dated Oct. 7, 1833, as appears from the certificate of John
P. Borden, commissioner of the general land office, now on file in the office; payment made by the administratrix of J. C. Peyton, att'y."
"E. L. STICKNEY, Acting Comm'r of Rev."
"I, Harrison Owen, County Clerk of Records in and for the County of Robertson, do certify that a true copy of the within is entered on record in my office at Franklin this third day of April, A.D. 1841."
"HARRISON OWEN, Co.Rec.R.C."
"Recorded in book C, pages from 110 to 125. Paid by B. Gillespie, my fees, par funds."
"Fifth, Grant or title from Luke Lesassier, alcalde, &c., of eleven leagues of land (including the four in controversy) to Jonathan C. Peyton, attorney of Gregorio Basquez, of date eighteen hundred and thirty-three (1833)."
"Third stamp -- two reales"
"Legalized for the State of Coahuila and Texas for the years 1828, 29, '30, '31, '32, & '33. Williams."
"In the Town of San Felipe de Austin on the seventh day of October, 1833, I, the citizen Luke Lesassier, constitutional alcalde of this town and its jurisdiction, in the exercise of the authority which has been conferred on me by the supreme government of this state by decree dated at Leona Vicario, on the 11th March, 1831, and in consideration of the sale executed by the aforesaid supreme government in favor of Gregorio Basquez, a native of the City of Mexico, then residing in the Town of Nacogdoches, of eleven leagues of land, as will appear from the superior decree of sale, dated in the aforesaid Leona Vicario on the eleventh day of March, 1831, and presented by his attorney, Jonathan C. Peyton, as will be seen on pages 3 and following of this proceeding, and in attention to the superior order of his excellency the lieutenant governor, dated on the twenty-ninth day of January of this year, and circulated by the chief of this department on the 19th of last February, repealing the provisional decree of the supreme government of the state in relation to those citizens to whom had been granted land not being permitted to take possession of them until the commissioner general of the nation shall have made a reservation; and inasmuch as none of those eleven leagues applied for by the interested party are at
any of those points ceded to the federation by the aforesaid order and in view of the approval granted by the empresarios Messrs. Austin and Williams, written upon the first page of this proceeding, as the lands belong to the enterprise of said empresarios -- in conformity with the colonization law of the state of 24th March, 1825, and in the name of the state, I confer upon and put the aforesaid attorney of the citizen Gregorio Basquez in real, virtual, personal, and actual possession of eleven leagues of land, the same which he has asked for and that the government has sold to him upon the Brazos River; the situation, lines, limits, and corners of the same are delineated in the notes of survey made by the principal scientific surveyor, Francis W. Johnson, on pages two and following of this proceeding, with the figure thereof shown in the map hereunto annexed. The aforesaid lands, by said notes of survey, are, in the opinion of the surveyor, to be of the arable class in two leagues, and of the pasture class in nine leagues."
"I, the commissioner and alcalde aforesaid, in the exercise of the authority conferred on me by the law, do declare, in accordance with said classification, he shall satisfy the state in the sum of one thousand two hundred dollars, according to the provision in the twenty-fourth article of the aforesaid colonization law, dated on the 24th March, 1825, and in the terms designated in the twenty-second article of the same law, under the penalties therein established, being notified that within one year he shall construct permanent landmark at each angle of the land; that he shall cultivate the same in conformity with the provisions in the aforesaid law, and scrupulously comply with all ordained in it, and other enactments on the subject."
"Therefore, by virtue of the authority vested in me by the aforesaid decree of the supreme government of the state, and other orders from the same government on the subject, by the law and pursuant instructions which guide me, I issue the present title, and order that an authenticated copy be taken of it, and let it be delivered to the interested party, that he may possess, use, and enjoy the lands which have been sold to him, his children, heirs, and successors, or whoever of him or of them may have cause, interest, or right to represent, for such is the will of the state. Given at the Town of San Felipe de Austin on the day and date above written, which I sign, with assisting witnesses, according to law."
"Ass. witness: W. T. LIGHTFOOT"
"Ass. witness: C. C. GIVENS"
II. In admitting as evidence the papers set forth in the foregoing assignment of error, inasmuch as they do not identify and describe any definite parcel of land.
III. In admitting the testimony of Horatio Chriesman to prove by the declarations of Moore, who is now deceased, that the Basquez grant was surveyed by the latter on the reserve line or at any other particular place, such evidence being merely hearsay.
IV. In admitting his testimony, wherein he undertakes to tell what Moore told him about the location of the Austin & Williams reserve line and the Basquez grant, particularly that Moore informed him in 1834 that he had made the survey of the said four-league Basquez grant; that the upper line of said grant began on the east side of the Brazos River, at the point where the upper line of the reserve began; and that the upper line ran north 71 degrees east, with the reserve line, the full distance of the Basquez line; and that the upper line of the Basquez and the upper line of the reserve were the same to the extent of the Basquez line, because there was no proof that the upper line of Austin & Williams's reserve was ever in fact run, or was ever required by law, order, or decree to be run, and because there is no call in said Basquez' grant for said line; and because said witness did not state that Moore ever pointed out the place on the ground where he had run either the Basquez line or the said reserve line; and because the testimony was hearsay.
V. In admitting in evidence the following documents:
"THE STATE OF TEXAS,"
"County of Falls:"
"To the Honorable the District Court in and for the County of Falls:"
"In pursuance of an order made at the last or fall term of said court (A.D. 1869), directing the undersigned surveyors to proceed and run, or make any survey necessary, and show by report to what extent, if any, the land claimed by J. C. Pool, plaintiff, and C. Jones, defendant, conflicts, and also the land claimed by Rhoda B. Huckins et als., plaintiffs, conflict, if any, with the land claimed by and in possession of J. C. Pool, defendant, said land situated in Falls County, on the east margin of the Brazos River. "
"In accordance with said order we, the undersigned surveyors, met on the eleventh day of November, A.D. 1869, at what is known as the Falls of the Brazos, on the east margin of said stream, and all the parties having been notified, and being present, either by themselves or attorneys, we ascertained by the calls of the A. De la Serda grant and the field notes of the Jose M. Sanches survey, together will a full and complete examination of lines and natural marks, the precise locality of the southern line of the said La Serda grant, it being the northern line of the said Sanches survey, and for a more particular description reference is hereby made to our accompanying plat, which is made a part of this report."
"We then proceeded to ascertain the boundaries of the Gregorio Basquez grant, and finding that the surveyor of Austin & Williams's colony located the same on what is known as Austin & Williams's reserve line; after searching, we found marks, corresponding in age and course, in post oak timber, near the north end of what is known as Hog Island. After tracing said marks about fifteen miles, and finding the line to run N. 71 E., running from the Brazos River, and judging from the age of the marks and course of the line, together with the facts that after it passed the said Basquez N. E. corner it ran across, and without respect to all the known surveys of the section it passed, and there being no corners made on it, we were entirely satisfied that we were on said reserve line."
"We then ran the northern boundary of the Basquez to the east bank of the Brazos River, and found the following results:"
"That all the land claimed by said J. C. Pool is included within the boundaries of the said Basquez and the said Sanches survey, as set forth in our accompanying plat of said survey, this the 16th of November, 1869."
"S. W. BINGHAM"
"R. F. ALEXANDER"
"W. S. HUNNICUTT"
"J. H. COLLARD"
"THE STATE OF TEXAS"
"County of Falls:"
"Personally appeared before the undersigned authority Sam. W. Bingham, R. F. Alexander, W. S. Hunnicutt, and J. H. Collard, whose names are signed to the foregoing report, who, after being duly sworn by me, on oath declare that said report is true and correct in the facts therein stated, and the conclusion arrived at
is true and correct, according to their opinion as scientific surveyors."
"To certify which I hereto sign my name and affix my seal of office on this sixteenth day of November, 1869."
"SAMUEL M. DALTON, D.C.F.C."
"To the Clerk of the United States District Court for the Western District of Texas, at Austin:"
"ANGELINA B. EBERLY et als."
"JAMES MARLIN et als."
"SIR -- In obedience to the commands of an order of survey issued from under your hand and seal, in your official capacity of the clerk of the District Court of the United States for the Western District of Texas at Austin, commanding me to survey a certain tract of land containing four leagues, situated in this county on the eastern margin of the Brazos River below the Great Falls thereof and to ascertain the lines thereof, which land is claimed by the plaintiffs to the above-entitled cause, and which order of survey issued in said cause, and which land was titled to one Gregorio Basquez, I proceeded in last summer (the date not now being remembered) to search for said lines, and about one mile and a half below the Great Falls of the Brazos, where on its eastern margin I found a line to start out from the river at a course of N. 68 E., in a weed prairie, and at 9,170 varas from the river crossed Big Creek, at 20,220 varas from the river corners in prairie, strike prairie at about 12,500 varas. I then ran south 21 E., at right angles with said line at 4,870. I found another old line running S. 60 W. to the river at 17,266 varas, making a difference in the length of the two lines of 2,960 varas."
"I found the league and labor of land surveyed and located in the name of James Marlin to be entirely in conflict with the before-recited survey."
"In testimony whereof, I have hereunto set my hand this the 29th of December, 1857."
"W. S. HUNNICUTT"
"I, W. S. Hunnicutt, a dept. surveyor for Robertson's land district, do hereby certify that the foregoing is a true and correct statement of facts to the best of my knowledge. Given under my hand and seal this 29th December, A. D. 1857."
"W. S. HUNNICUTT"
"Dept. Surveyor for Robertson's Land District"
To which the defendants objected on the ground, among other reasons, that they were not parties or privies to said cause.
VI. In refusing to charge the jury that the concession to Sanchez authorized the owner of said concession to appropriate five leagues of the public domain, and, having shown an older survey than the survey by virtue of the concession to Basquez, the said Sanchez title is the superior title for the lands covered by it.
VII. In charging the jury on the question of limitation, and in refusing to charge that if the jury believed from the testimony that the ancestor of the defendants, Churchill Jones, entered upon that part of the John Marlin league which is in conflict with the Basquez, as claimed by the plaintiffs, at any time before the plaintiffs or their ancestor made an entry on said Basquez, and that said defendants and their ancestor had so remained in said possession of the lands claimed by them for three years or more before the institution of suit, then they should find in favor of the defendants, Watson, Bartlett, and W. H. Jones, on their plea of limitation.
VIII. In refusing to charge the jury that, if they believed from the evidence that at the date of the purchase by Churchill Jones from the heirs of John Marlin in 1853, the said Jones had no notice by the county map, or other records, or otherwise, of any conflict of the John Marlin league with the Basquez grant, they should find for the defendants, Watson and children, Bartlett and wife, and William H. Jones, even if they should find that the location as claimed by the true location of said Basquez grant.
IX. In rendering judgment on the verdict of the jury, because the same is indefinite, uncertain, and does not find the main issue in the case; viz., how much of the defendants' land, if any, is covered by the plaintiffs' grant.
The charge to the jury complained of in the seventh assignment of error is set forth in the opinion of the Court.