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
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
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
Page 102 U. S. 334
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
of their title:
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
"Power of Attorney, with Power of Substitution,
"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,
Page 102 U. S. 335
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"
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 "
Page 102 U. S. 336
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
"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
"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
Page 102 U. S. 337
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
"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
Page 102 U. S. 338
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"
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. "
Page 102 U. S. 339
"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
"Ass. witness: FRANCIS ADAMS"
"Ass. witness: HYMAN HERTZ"
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
Page 102 U. S. 340
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
"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
Page 102 U. S. 341
P. Borden, commissioner of the general land office, now on file
in the office; payment made by the administratrix of J. C. Peyton,
"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.
"HARRISON OWEN, Co.Rec.R.C.
"Recorded in book C, pages from 110 to 125. Paid by B.
Gillespie, my fees, par funds."
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
Page 102 U. S. 342
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
"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
"Ass. witness: W. T. LIGHTFOOT"
"Ass. witness: C. C. GIVENS"
Page 102 U. S. 343
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
"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
Page 102 U. S. 344
"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
"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
"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
Page 102 U. S. 345
is true and correct, according to their opinion as scientific
"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
"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
Page 102 U. S. 346
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
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
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.
Page 102 U. S. 352
MR. JUSTICE STRONG delivered the opinion of the Court.
This is an action of ejectment brought to recover the possession
of four leagues of land on the east bank of the Brazos River, known
as the Gregorio Basquez survey of four leagues. The defense set up
against the claim of the plaintiffs was the general issue by which
the title of the plaintiffs was denied, as also the wrongful entry
of the defendants. The statutes of limitation were also
At the trial in the circuit court, a verdict was obtained by the
plaintiffs, upon which a judgment was entered, and the defendants
have brought the case here, assigning several errors to the rulings
in the lower court.
Page 102 U. S. 353
Before proceeding to examine them, it is necessary to notice an
objection interposed by the plaintiffs against their being
considered at all.
The verdict was rendered on the 17th of February, 1877, and
judgment thereon was entered on the same day. On the 19th of the
same month, the defendants moved for a new trial. This motion was
overruled on the 20th. Two days afterwards (on the 24th), the writ
of error was sued out, tested on that day. It does not appear when
the writ was filed or served. A citation was also issued on the
24th of February and returned by the marshal, received in his
office September 3, and served the same day.
The defendants' bills of exception upon which their assignments
of error are founded were signed by the judge on the 28 the of
February and filed in the cause on the 1st of March next following.
This was during the term at which the cause was tried, but eleven
days after the verdict was rendered. The plaintiffs' counsel was
present when the bills were signed, and objected on the ground that
they were not presented for signature within the time limited by
the rule of the court. That rule was as follows:
"No bill of exceptions will be signed unless presented to the
judge within five days after the close of the trial unless further
time be allowed by the court."
No objection was made to the correctness of the bills or to
their signature because a writ of error had been sued out.
On the 1st of March, an order was made by the court extending
the time for presenting and filing the bills until that day (the
plaintiffs objecting to the order), and accordingly the bills were
It is now insisted that the bills of exceptions cannot be
considered a part of the record, and that they are not properly
here for review. For this several reasons are advanced, the first
of which is that the presentation to the judge was not in the time
prescribed by the rule of the court. But the rule requiring the
presentation of bills for the signature of the judge within five
days is not a rule which controls his action. He may depart from it
in order to effectuate justice. Stanton v. Embrey,
93 U. S. 548
. It is
a direction to the parties, and it expressly reserves the power to
enlarge the time. It is no
Page 102 U. S. 354
doubt necessary that exceptions should be taken and at least
noted before the rendition of the verdict; but the reduction of the
bills to form, and the signature of the judge to the bills,
required for their attestation, or, as said in the Statute of
Westminster, "for a testimony,
" may be afterwards, during
the term. In practice, it is not usual to reduce bills of exception
to form and to obtain the signature of the judge during the
progress of the trial. Nor is it necessary. The Statute of
Westminster did not require it. It would greatly and uselessly
retard the business of courts were it required that every time an
exception is taken the progress of the trial should be stayed until
the bill could be reduced to form and signed by the judge. For this
reason, it has always been held that the exception need only be
noted at the time it is made, and may be reduced to form within a
reasonable time after the trial is over. United
States v. Breitling,
20 How. 252; Stanton v.
Embrey, supra; 67 U. S.
2 Black 564. The time within which the signature of
the judge must be applied for, if within the term, is left to the
discretion of the judge who noted the exception when it was made.
It may depend much upon the nature of the bills. Some require much
more time for preparation than others. It is true a judge cannot be
permitted to make up a statement of facts, after the writ of error
is issued, upon which the case shall be heard. Generes v.
7 Wall. 564. That is quite a different
matter. But when an exception has been taken at the trial and
noted, reducing the exception to form afterwards and attesting it
is not making a new case; it is merely verifying the case as it
appeared on the trial.
It is further urged by the plaintiffs that the defendants waived
their exceptions by suing out the writ of error before the
signature of the judge was obtained. In support of this objection,
we are referred to Tidd's Practice 863, where it is said,
"If a party who at the trial of a cause has tendered a bill of
exceptions, bring a writ of error before he has procured the
judge's signature to such bill, he thereby waives the bill of
exceptions, and will not be permitted by the court of error
afterwards to tack or append the bill of exceptions to the writ of
4th Am. ed., from the 9th London. For this the
Page 102 U. S. 355
author relies on Dillon v. Doe dem. Parker,
1 Bing. 17;
11 Price, 100. In that case, a year had elapsed after
the writ of error had issued. The transcript of the record had gone
into the Court of Errors. The common assignments of error had been
made and issue had been joined before the plaintiff in error moved
the court in error to compel a settlement of the bill in the lower
court, and asked that it might be appended to the writ. In response
to this motion, it was observed by two of the justices that the
proper course would be to apply to the inferior court (the Court of
King's Bench), which might perhaps make such an order, and then the
bill of exceptions might be brought up by an allegation of
diminution. The case cited hardly sustains the text. Only one of
the judges expressed the opinion that the writ of error and the
return of the record were a waiver of the bill of exceptions. But
if that is the rule in the English courts, it is not imperative
even there. Where the presentation to the judge has been delayed
from the default of the defendant in error or for other sufficient
reasons, the Court of Errors will allow the bill of exceptions,
when signed, to be tacked to the record as of the time when the
record was removed. Taylor v. Willans,
2 Barn. & Adol.
6 Bing. 512. The case is also reported in 4 Moo.
& P. 257, where the facts are fully stated. On the trial before
Chief Justice Tindal on the 23d of December, a bill of exceptions
was tendered, the substance of which was reduced to writing and
given to the officer of the court before the termination of the
cause, but it was not then signed and sealed. There was a verdict
for the plaintiff. The defendant sued out a writ of error in the
King's Bench. Subsequently, on the 11th of February following, the
bill of exceptions in an amended form was settled by the counsel
for the parties, and a copy was sent to the plaintiff's attorney
that he might accede to its terms or suggest alterations before it
was sealed by the Chief Justice. At the same time, the defendant
served a rule to transcribe the record for return with the writ of
error. The bill not having been returned, the court granted an
order for its return. It was argued against the rule (and
Dillon v. Parker
was cited in support of the argument)
that the bill was waived, and that, by the writ of error and the
rule to transcribe, the record had been
Page 102 U. S. 356
removed into the King's Bench. But the court, all the judges
concurring, retained the order upon the attorney, holding that the
Chief Justice might seal the bill. It is not, therefore, by any
means settled, even in England, that suing out a writ of error is a
waiver of unsigned bills of exceptions.
We know of no decision in this country that asserts or gives any
countenance to such a rule, or any reason that justifies it, unless
it be one in New York, to which we shall refer. True, a writ of
error here, as in England, is supposed to remove the record of the
court to which it is directed into the superior tribunal. But this
is a mere fiction. In neither country is the record itself actually
sent up. A transcript only is sent. In England, at common law, a
writ of error operated as a supersedeas and stayed all action of
the inferior court, and thence it was regarded as removing the
record and ousting the jurisdiction of that court. The law there
has been changed. And here the writ is of itself no supersedeas. If
there be no bail for a supersedeas, a writ does not stay the action
of the trial court. An execution may be issued and executed though
a writ of error is pending. Much more, it would seem, must the
court to which the writ is sent have power, during the term in
which the case is tried, to put its records and proceedings in form
to return them in obedience to the writ. If that cannot be done,
great hardship and injustice would in many cases be the result. As
we have said, bills of exceptions cannot always be formally
prepared until a considerable time after verdict and judgment. They
may require in some cases a full statement of almost all that
occurred at the trial. Papers necessary to be incorporated may be
mislaid or withheld by the opposite party; the charge of the judge,
to which exception has been taken, may not have been filed, or
sickness may have interfered. Meanwhile, judgment on the verdict
may have been entered, and unless the party can protect himself by
a writ of error, an execution may follow. For these reasons, the
universal practice is to give reasonable time to make up the bills
of exceptions and obtain the signature. This is not altering the
record, it is completing it. It is not exercising jurisdiction over
the case. It is merely putting into form the record statement of
what was done before the writ of error was sent down. In Brown
Page 102 U. S. 357
1 Dougl. (Mich.) 273, where a bill of
exceptions returned with a writ of error appeared to have been
signed after the writ was sued out, it was held to be, at most,
whether at common law or under the statute, a mere irregularity,
which was waived by a joinder in error. Witbeck v. Waine,
8 How. (N.Y.) Pr. 433.
The remaining objection to the bills of exceptions is that they
were not signed nor filed nunc pro tunc,
but that they
appear on their face to have been signed and filed ten days after
the trial. We think, however, the absence of any order that the
bills should have the same effect as if they had been signed and
filed during the trial is not a fatal objection. The order of March
1, extending the time for signing and filing, is equivalent to such
an order. And the fact that the date of the signature was the 28th
of February is of no practical importance. At most, it is only an
irregularity. It is not a void act. Perhaps the bills would appear
more regular had they been dated February 17, but they are recitals
of what occurred at the trial, and they show that the exceptions
were then taken -- taken in time. If it be kept in mind that the
judge's signature is required only for "testimony" that the
exception was taken at the trial, and before verdict, it cannot be
material that the testimony was given after the close of the trial,
if given during the term. We do not overlook what was said in
Walton v. United
9 Wheat. 651. We gather the facts of that
case only from the opinion of the Court, delivered by Mr. Justice
Duvall, by which it appears that the bill of exceptions did not
show that any exception was taken at the trial. That, of course,
was a fatal defect. But after having noticed that fact, he made
some general observations. After stating that it will be sufficient
if the exception be taken at the trial, and noted by the court with
the requisite certainty, and that it may afterwards, during the
term, according to the rules of court, be reduced to form and
signed by the judge, he added,
"But in all those cases, the bill of exceptions is signed
nunc pro tunc,
and it purports on its face to be the same
as if actually reduced to form and signed pending the trial. And
[he said] it would be a fatal defect if it were to appear
otherwise, for the original authority under which bills of
Page 102 U. S. 358
allowed, has always been considered to be restricted to matters
of exception taken pending the trial and ascertained before the
These remarks were not necessary to the decision of the case,
and they are unsustained by any authority, so far as we know, that
existed when they were made. In Ex parte
4 Pet. 102, Mr. Chief Justice Marshall
said a practice to sign a bill of exceptions after the term must be
understood to be a matter of consent between the parties unless the
judge has made an express order in the term allowing such a period
to prepare it. No intimation was given that the signature must be
nunc pro tunc.
Walton v. United States
was referred to in Law v.
6 Wend. (N.Y.) 268, by one of the judges, and the
language of Mr. Justice Duvall quoted, but it was unnecessary to a
decision of that case. The bill there had been signed a year after
the trial by a judge who had not tried the cause. We find no case
which can be regarded as an authoritative decision that a bill of
exceptions, signed during the term at which the trial took place,
though after the close of the trial, must be antedated to make it
effective, or ordered to be filed nunc pro tunc
as of a
time during the trial. Nor can we discover any reason for such a
requirement. During the term, the records of the term are before
the court for amendment in matters of form, and whether a bill was
signed as of a date after judgment if during the term, or antedated
to a time during the trial, is a question of form only if it
appears that the exceptions were in fact taken before verdict and
during the progress of the trial. Confessedly it may be signed
after judgment, as of a date before, and be effective, though the
date of the signature in such a case is false. Why should giving to
the signature its true date destroy it? The reason why it is
required that a bill shall be presented for signature during the
term (except in extraordinary cases, when delay is allowed by the
judge) is that the facts appearing and rulings made at the trial
may be fresh in his memory. Are they any more fresh in his memory
when he antedates the bill or orders it to be filed as of the date
of the trial than when be gives to the signature and filing their
true date? We cannot doubt that in a multitude of cases,
Page 102 U. S. 359
bills of exceptions have been signed after judgment and filed
without any order that the signature and filing be entered nunc
but, when the true time of the signature appeared,
have been treated as sufficient whenever they have shown that the
exceptions were taken during the trial. And we think it would be a
surprise to the profession, and work great wrong to suitors, were
we to hold such bills invalid.
In Neece v. Haley,
23 Ill. 416, exceptions were duly
taken at the trial. The record showed that the bill of exceptions
was signed three days afterwards, but during the term. It was held
that the bill was good and that the record need not explain the
So it was ruled in Illinois Railroad Co. v. Palmer,
43, that, if the bill of exceptions clearly shows that
exceptions were taken at the proper time, it is immaterial that it
was not signed till some days after the trial, and that it spoke in
the present tense.
In Dean v. Gridley,
10 Wend. (N.Y.) 254, Savage, C.J.,
declared that it was not required the bill should be so drawn as to
appear to have been signed upon the trial, whether it was so or
not. He was speaking of the Supreme Court of Errors. See
Hallowell v. Hallowell,
1 Mon. (Ky.) 130; Hughes v.
We pass, then, to a consideration of the assignments of error.
The first raises the question whether the title which was set up in
Jonathan Peyton was a legal one or merely an equity. As set out in
the several bills of exceptions, it appears to have been as
On the 28th of September, 1830, Gregorio Basquez applied to the
proper authorities of the Mexican government for a grant in sale of
eleven leagues of vacant land in the department wherein Nacogdoches
was situated, with the privilege of selecting them together, or
separate, or in distinct places.
On the 11th of March next following, a concession was made in
accordance with the prayer of the petition, and an order given to
the commissioner for the partition of land, or to the alcalde of
the jurisdiction, to put the petitioner into possession of the
subject of the grant.
On the 20th of September, 1831, Basquez gave a power of
Page 102 U. S. 360
attorney to Don Jayme Hartz, empowering him to solicit the
possession and titles to the said eleven leagues in the place or
places which best suited him (Hartz), together or separate, and
empowering him also to appoint substitutes.
Two days afterwards, Basquez sold and conveyed the grant for the
sum of $150 to Don Jayme Hartz in fee.
On the 2d of March, 1832, Hartz, in consideration of $500 to him
paid, sold the concession or grant to Jonathan Peyton, the ancestor
of the plaintiffs, in fee, and substituted him as attorney. The act
of sale recited the conveyance of Basquez to the vendor.
On the 7th of October, 1833, the constitutional alcalde, by a
legalized act, conferred upon and put Peyton, the aforesaid
attorney of Basquez, "in real, virtual, personal, and actual
possession of the eleven leagues," the same which had been granted
to Basquez, describing them by the situation, lines, limits, and
corners as delineated in the notes of survey made by Francis W.
Johnson, the principal surveyor, on pages two and following of the
proceeding, with the figure thereof shown in the map thereunto
annexed. The act of the alcalde also ordered that an authenticated
copy of it should be delivered to the interested party that he
might possess, use, and enjoy the lands sold to him, his children,
heirs, and successors, or whoever of him or them might have cause,
interest, or right to represent.
We are unable to see why these proceedings did not vest the
legal title to the lands granted in Peyton. The possession was
delivered to him, and he was instituted therein. The interest of
Basquez, whatever it was, both legal and equitable, had been sold
by him to Hartz, and Hartz had sold it to Peyton. The institution
into possession must therefore have inured to the benefit of
Peyton. It is a mistake to allege, as the defendants now do, that
the final extension of title was to Basquez. It may be that Peyton
would have held the land for the use of Basquez had he been only
the attorney of Basquez. But he was more. He was a grantee of all
the Basquez right. In this particular, the case is unlike
16 Wall. 166. In that case as here, there
had been an extension of the possession to the attorney in fact of
the original grantee of
Page 102 U. S. 361
the government, and it was held that the extension inured to his
benefit, and that its legal effect was to perfect title in him. But
there had been no grant of the original title to the attorney. An
assertion of title in him was therefore a fraud upon his principal.
But this Court said:
"We do not mean to say that the original grantee, if not
prohibited by law, might not have assigned his inchoate title to a
third person, nor that the title might not, by a grant in proper
form, have been perfected in such assignee."
It has repeatedly been decided in Texas that purchasers under
the twenty-fourth article of Mexican laws of 1825 can alienate
their grants as soon as the concession has been made to them,
before the land was selected or the title of possession was issued.
Ryan v. Jackson,
11 Tex. 391; Clay v. Holbert,
189. In Martin v. Parker,
254, it was held that a formal act of sale by the original grantee,
with a power to the purchaser to obtain the title of possession,
must be held to constitute the purchaser the absolute owner of the
property when he is put into possession of the land, and the
evidence of title by the proper officer of the government. Such is
this case. The first assignment of error therefore cannot be
Nor can the second. The original grant, it is true, did not
locate the subject of the grant. It contemplated a selection and
location thereafter, and, when these were made, as the jury found,
and the title of extension was given, the title was complete. There
was enough in the extension, coupled with the notes of the surveyor
(made a part of it), to enable the location to be identified. A
more important question is raised by the third and fourth
It was a very material inquiry at the trial where the Basquez
four leagues had been located. The title papers described the
location as beginning at a stake marked P, upon the left margin of
the River Brazos, running thence north 71 degrees east, to a
corner; thence by other courses back to the river, and thence up
the river to the place of beginning. Such was the report of the
survey. The starting point was a stake -- perishable, of course --
which, as might have been expected, would not be found after a
lapse of forty years. But the survey was
Page 102 U. S. 362
not a mere chamber one. There was evidence that it had actually
been made upon the ground, and the court submitted to the jury to
find whether it had or not. No exception was taken to this
submission, and the jury found that an actual survey had been thus
made. Its location was the matter chiefly in controversy. The claim
of the plaintiffs was that its upper or north line, described as
beginning at a stake marked P on the left bank of the Brazos River,
running thence by a course north 71 degrees east, was the upper
line of the Austin & Williams reserve, and identical with it to
the extent of the Basquez survey. To prove this, they introduced
the testimony of Horatio Chriesman, against the objection of the
defendants. Chriesman had been a surveyor under F. W. Johnson,
principal surveyor of the Austin & Williams lands in the
reserve, and William Moore, deceased, had been another deputy. The
two deputies, in 1833 and 1834, had been engaged in surveying in
the reserve other lots on the left side of the Brazos River.
Neither of them was on the Basquez tract or on any line of it.
Chriesman was laying out tracts fronting one thousand varas on the
river. By direction of Johnson, these surveys were to include all
the riverfront between the upper line of the Ruiz (a grant located
on the lower line of the reserve) and the lower line of the Basquez
four-league grant. Moore was surveying in the rear. During the time
that Moore and the witness were thus engaged surveying in the
reserve, and perhaps before that time, as he testified, he was
allowed to state that Moore informed him that he had made the
survey of the Basquez four-league tract; that the upper line of
said grant began on the east bank of the Brazos River, at the point
where the upper line of the reserve began; and that the upper line
of the Basquez 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. It was this testimony, and other of a
similar nature, to which the defendants objected and to the
admission of which they excepted.
It is to be noticed that the witness himself, as he expressly
stated, had no knowledge of the location or lines of the Basquez
survey except what Moore had told him. The declarations of
Page 102 U. S. 363
Moore were made not when he was pointing out the boundaries of
the Basquez survey, but when he was at a distance from the place of
beginning of that survey and from its upper line. That Moore had
made the survey, or ever been upon its upper line, or on the upper
line of the reserve, is proved only by his assertion, which the
court allowed to be given in evidence. There was no such proof
Whether he had any knowledge of the facts whereof
he spoke to Chriesman is known only from his own statement.
Again, Moore's declarations had no reference to reputation in
the neighborhood. They are not to be confounded with proof of
reputation -- proof of what the community thought, believed, or
said. As repeated by the witness, they were mere hearsay, the
unsworn declarations of a deceased person respecting a particular
fact not of a public nature. We do not question that such
declarations of reputation respecting ancient public boundaries are
admissible, and they have sometimes been admitted in controversies
respecting private boundaries. But they are admissible in only a
limited class of cases -- a class much more limited than that in
which such evidence is offered to prove reputation of public
boundaries. Proof of reputation is open to rebuttal by witnesses.
Not so with declarations of a particular fact respecting a private
boundary. They are therefore receivable only when made coincidently
with pointing out the boundaries and generally as part of the
In Ellicott et al. v.
10 Pet. 412, we find a case which bears
strongly on the present. In that case, which was a writ of right
for a tract of land in which the location of a survey was a matter
in controversy, a witness was offered to prove that on Moore, who
was dead, but whose name was put down as one of the chain carriers
in making the original survey, and who was subsequently present
when lines were run on the same land, had declared that a certain
corner was the corner made by the surveyor when the original survey
was made and the line was run for that survey. The evidence was
rejected, and, this Court ruled, correctly rejected, though the
declarations offered were made by one who was proved by other
evidence to have assisted in running the line. This case is
Page 102 U. S. 364
and we believe it is in harmony with the rule generally enforced
in this country. It certainly is in accord with the ruling of the
It is true that in several states of the Union, decisions have
been made recognizing the admissibility of declarations of deceased
persons, even though they were statements of particular facts and
in regard to mere private boundaries; but many of them, perhaps
most of them, were admissible on other grounds, either as parts of
the res gestae
or declarations of parties in possession.
We think such is not the preponderant weight of decision. In
Massachusetts, where the subject has been much discussed, it is
held that to be admissible, such declarations must have been made
by persons in possession of land and in the act of pointing out
their boundaries. Bartlett v. Emerson,
7 Gray (Mass.) 174;
Daggett v. Shaw,
5 Metc. (Mass.) 223. And again, in
Long v. Colton,
116 Mass. 414, when it was said that it is
an element not to be disregarded, especially where the question is
one of private boundaries, that the declaration was made while in
the act of pointing out the boundaries on the declarant's land. The
declaration derives its force from the fact that it accompanies and
qualifies an act, and is thus a part of the act. A similar ruling
was made in Bender v. Pitzer,
27 Pa.St. 333.
We will not undertake to review the vast number of decisions of
state courts upon this subject. It would greatly protract this
opinion. Some things may be deduced from them which, though not
universally recognized, are the conclusions to which, we think, a
great majority of them lead. In questions of private boundary,
declarations of particular facts, as distinguished from reputation,
made by deceased persons are not admissible unless they were made
by persons who, it is shown, had knowledge of that whereof they
spoke and who were on the land or in possession of it when the
declarations were made.
To be evidence, they must have been made when the declarant was
pointing out or marking the boundaries or discharging some duties
relating thereto. A declaration which is a mere recital of
something past is not an exception to the rule that excludes
hearsay evidence. Still, if a different ruling has been
Page 102 U. S. 365
made in the State of Texas, and has become a rule of property
there, applicable to the determination of controversies respecting
disputed boundaries, we should feel constrained to apply the Texas
rule to this case. We have therefore carefully examined all the
decisions of the Supreme Court of that state which relate to the
subject. The result has been to convince us that there is no
essential difference between the rule as there held and the general
rules held by the American courts. Hearsay evidence is admitted in
questions of boundary to establish old boundary lines, even when
private, but it is under restrictions, and the restrictions appear
to be the same as those which are recognized elsewhere.
The first case is George v. Thomas,
16 Tex. 74. What
was there ruled was that the declarations of a public surveyor,
made while he was making the survey to establish the dividing line,
were admissible. They were a part of the res gestae.
is the leading case to which the later cases refer and upon which
they are generally rested. The opinion cites Blythe v.
3 McCord (S.C.) 258. In that case, the
declarations of a deceased surveyor, who was proved by a witness to
have run the line originally, were admitted in evidence. But they
were declarations made while the surveyor was pointing out the line
and showing the monuments. Stroud v. Springfield,
649, goes no farther. The evidence offered in that case was
rejected. The court, however, referred to Speer v. Coate,
3 McCord (S. C.) 227, where the court had said in reference to the
declarations of a deceased chain carrier who had pointed out to the
witness a corner tree of the survey,
"it cannot be doubted at this day that the declarations of
deceased persons who shall appear to have been in a situation to
possess the information, and are not interested, shall, on a
question of boundary, be received in evidence."
Even this was not declared to be an accepted rule in Texas,
though the chain carrier who aided in the survey had actually
pointed out a corner.
The next case is Welder v. Carroll,
29 Tex. 317. It
decided nothing more than was ruled in the former cases. Indeed,
while the court said
"If the locality of a boundary line can be proved by witnesses
who can, from their personal knowledge or on information derived
from general reputation, or from its
Page 102 U. S. 366
having been pointed out to them by the surveyor by whom it was
run or others who were present at the time or cognizant of the
fact, it will fix and mark its position."
But at the same time, the court rejected the deposition of a
witness tending to prove the locality of the line from information
given him by a surveyor, remarking that
"while, as heretofore held by this court, hearsay evidence to
establish ancient boundaries is, under proper circumstances,
admissible, it should be closely scrutinized and received with
And it was held that the evidence was much too vague and
uncertain in respect to the locality of the line of which the
witness spoke, as well as in respect to the source of his
information and the time and circumstances under which he acquired
The next case is Evans v. Hurt and Others,
111. It decides that declarations of a former owner,
since deceased, who, while in possession of and claiming the land,
pointed out his corner and line to the deposing witness, are
evidence of the boundary in behalf of the parties claiming under
him. This is the rule as held in other states. The court also
decided that the declarations of a son of a former owner who
pointed out the disputed line to the witness were inadmissible; but
the case does not show what they were, nor under what circumstances
they were made. This case came again before the court, and it is
reported in 49 id.
311. The report, however, contains
nothing more definite than what appears in 34 Texas.
The only other case which we have found or to which we have been
referred is Smith v. Russell,
247. In that
case, it appeared that the lower court had permitted the defendants
to prove that one of the original chain carriers, who was dead at
the time of the trial, had pointed out to the witness the place of
the corner. The supreme court held that the evidence was properly
admitted, with the general remark that "the declarations of
deceased witnesses may be proved to fix the location of corners and
lines," citing Stroud v. Springfield
and Welder v.
From a review of all these cases it is quite obvious
that the rule in Texas is not different from that which we have
endeavored to show is the general American rule, the guarded rule
we have heretofore stated.
Our conclusion, therefore, is that the fourth and fifth
Page 102 U. S. 367
of error must be sustained and that the answer of Chriesman to
the fourth, ninth, and nineteenth interrogatories, as well as all
the declarations of Moore, were erroneously received.
We discover no error in the admission of the evidence set out in
the fourth bill of exceptions. The documents were certainly
evidence against one of the defendants.
Nor can the sixth assignment of error be sustained. The survey
made under the Sanchez concession was not the completion of his
title. It did not identify the subject of the concession until it
was accepted by the government and until the title of possession
was given. That was issued Oct. 19, 1833, after the Basquez
concession had been consummated.
The seventh assignment relates to the charge given to the jury
respecting the statute of limitations. To understand this, it is
necessary to refer to some of the facts that appeared in evidence.
It appeared that in 1835, John Marlin, as a colonist, obtained a
complete grant from the Mexican government of one league, part of
which interfered with the Basquez four-leagues tract. It appeared
also that the defendants, Watson and his children, Bartlett and his
wife, and W. H. Jones, having shown title in themselves to the
several tracts they claimed, by regular transfer from the
sovereignty of the soil, gave evidence tending to show that their
ancestor, Churchill Jones, in 1855 or 1856, took actual possession
of that part of the Marlin league which interfered with the Basquez
grant, built a mill and other improvements thereon, and that the
possession had been kept up exclusively by said defendants and
those under whom they hold, down to the trial. This possession they
claimed to be a defense. It appeared, however, that in 1858, the
plaintiffs' ancestor entered on the Basquez grant, but not on the
interference, and made a lease to James Marlin, permitting him to
occupy three hundred and twenty acres. Marlin has ever since
resided there, holding as tenant under the plaintiffs or their
The charge of the court was as follows:
"The facts, as I understand the defendants to claim them, are
that in 1855, under the Marlin title, and in 1856 or 1857, under
the Sanchez title, they took actual possession of their lands lying
within the conflict. "
Page 102 U. S. 368
"From that date, the statute of limitations began to run in
their favor for the lands embraced within their title as against
the Basquez title. If three years elapsed before they were ousted
by a superior possession, then their occupancy for three years
makes a complete bar to any recovery by the plaintiffs."
"But the plaintiffs claim that in May, 1857, before the
defendants had been in possession for the period of three years of
any of the lands within the conflict, their possession was
interrupted by the entry upon the Basquez grant of James Marlin as
the agent for Mrs. Eberly."
"If you find this fact to be as the plaintiffs claim, that James
Marlin entered upon the Basquez grant in 1857 as the agent for Mrs.
Eberly, claiming title to the whole in her name, we instruct you
that for that time, the possession of the defendants -- they
holding under a junior title -- was restricted to the lands
actually occupied by them, and could not be extended by
construction to the bounds called for by their paper title."
"From Jan. 28, 1861, to the 30th of March, 1870, the statute of
limitations in this state was suspended. No extension, therefore,
of the actual possession of defendants between these dates would
avail them unless held for three years after the statute had again
commenced running, and before the commencement of this suit."
It is this instruction of which the defendants complain. But we
think it was correct. It was in accordance with the doctrine
asserted in Clarke's Lessee v.
5 Pet. 319, and generally recognized. It
is true that when a person enters upon unoccupied land under a deed
or title and holds adversely, his possession is construed to be
coextensive with his deed or title, and the true owner will be
deemed to be disseised to the extent of the boundaries described in
that title. Still his possession beyond the limits of his actual
occupancy is only constructive. If the true owner be at the same
time in actual possession of part of the land, claiming title to
the whole, he has the constructive possession of all the land not
in the actual possession of the intruder, and this though the
owner's actual possession is not within the limits of the defective
"The reason is plain. Both parties cannot be seised at the same
time of the same land under different titles.
Page 102 U. S. 369
The law therefore adjudges the seisin of all that is not in the
actual occupancy of the adverse party to him who has the better
These distinctions are clearly shown in the cases. One who
enters upon the land of another, though under color of title, gives
no notice to that other of any claim except to the extent of his
actual occupancy. The true owner may not know the extent of the
defective title asserted against him, and if while he is in actual
possession of part of the land, claiming title to the whole, mere
constructive possession of another, of which he has no notice, can
oust him from that part of which he is not in actual possession, a
good title is no better than one which is a mere pretense. Such, we
think, is not the law. When the owner of the Basquez title entered
upon the tract, took actual possession of a part by his tenant, and
retained it, claiming the whole, the law gave to that owner the
constructive possession of all that was not in the actual adverse
possession or occupancy of another.
In Altemus v. Long,
4 Pa.St. 254, it was ruled that
though actual possession under a junior title of part of a tract of
land, which interfered with an older grant, gave possession of the
whole to the holder of the junior title, yet a subsequent entry of
the true owner upon any part of his land was an ouster of the
intruder from what he had in constructive possession merely. We
know of no authoritative decision that is in conflict with
It is sufficient to say of the eighth assignment of error that
it is not sustainable. The answer to the defendants' point was
The remaining exception is to the sufficiency of the
It is said it was "indefinite, uncertain, and did not find the
main issue; viz.,
how much of the defendants' land, if
any, is covered by the Basquez grant"? This is not necessary for us
now to discuss. It may be the verdict was not sufficiently certain,
but as the case goes back for another trial, the matter is of no
Judgment reversed and cause remitted for a new
MR. JUSTICE FIELD and MR. JUSTICE BRADLEY dissented.