Freestone County, Texas
Court Cases



Cases argued and decided in the Supreme Court of the State of Texas, during the 
latter part of the Galveston term, 1878, and the entire Austin term, 1878. 
Volume 49. Page: 102.



WILLIAM GAINER ET AL. V. WILLIAM COTTON ET AL.


                          Syllabus

1. TESTIMONIO-HOW PROVED FOR RECORD - A testimonio, or second original, is properly 
admissible to record upon the acknowledgment of his signature by the officer 
before and jointly with whom the protocol was executed, and by whom the testimonio 
was made and delivered to the party interested, to whom it was to serve for title.

2. TESTIMONIO WHEN RECORDED EVIDENCE AS DEED - Such instrument, when duly recorded, 
is admissible in evidence under the statute admitting deeds and other instruments, 
&c., when duly recorded, and notice given as required by statute.

3. CASES APPROVED.-Edwards v. James, 7 Tex., 372; and Beaty v. Whitaker, 23 Tex., 
526.

4. AFFIDAVIT ATTACKING GENUINENESS OF RECORDED INSTRUMENT--Such affidavit is not 
strengthened by an additional affidavit attacking the genuineness of tlhe 
certificate of acknowledgment, or of proof of the instrument, by virtue of 
which it is allowed to be recorded. The disproof of the genuineness of sell 
certificate would be a fact bearing upon the genuineness, on the issue before the 
jury.

5. PROOF OF INSTPRUMENT SO ATTACKED - Such instrument so attacked, wvhen produced 
and freed from suspicion, may be proven in any way known to the common law; by 
proof of signature of one or both witnesses, they being dead, or other reason for 
their absence being shown; or it may be proved as an ancient document.

6. EVIDENCE-PRACTICE - The suspicion from which the instrument so produced must 
be freed before tile execution of such instrument may be proved by evidence of 
signature of subscribing witnesses, must arise from something apparent on the 
face of the instrument,-- something of which the judge can take notice, and upon 
which he can act; not such suspicion as may be raised by extraneous testimony,
introduced by the adverse party.

7. EVIDENCE-ANCIENT DOCUMENT - A title bond thirty years old, produced from the 
proper custody, without apparent alteration, shown to have been in the possession 
of the obligee within a few months of its date, recorded soon after its date in 
the proper county, acted upon and possession of the land taken and held by the 
obligee for more than twenty years, was admissible in evidence without further
testimony.

8. EVIDENCE - A title bond purporting to have been signed by the husband and wife, 
and admitted in evidence on proof of the signatures of the subscribing witnesses 
thereto, and admitted as an ancient document, was attacked by testimony tending 
to prove that the wife's name was a forgery, -- goes to the jury with the testimony 
as to the forgery of the wife's name, as evidence upon the question of genuineness
of that of the husband; the husband having had the right to dispose of the land 
without being joined by the wife.

9. POSSESSION UNDER TITLE BOND - Possession of land was taken in 1851, after a 
deed thereto had been executed by an attorney in fact of the grantee. A title bond 
therefore had been made for an undivided interest in 1837. In a suit by heirs of 
grantee against those holding under thle bond and deed: Held, That whether the 
attorney in fact Was authorized or not to make the deed, was immaterial, so far as
the possession under the bond was concerned; for if the attorney had authority to 
act, his deed was a satisfaction of the bond ; and if he had not, then the bond 
was unsatisfied, and the possession would be applied to the bond

10. EQUITABLE TITLE - A title bond executed in 1837, acknowledging full payment 
for the land, and reciting an absolute contract for the sale of the land, conferred 
a title to the obligee, not affected by the subsequent act adopting, the common 
law. Any deed executed would only give more satisfactory evidence of the right, 
but would not increase or alter the estate in the land had by the obligee.

11. NOTICE TO PRODUCE ORIGINAL--EVIDENCE, &C.-A certified copy of a deed made 
to plaintiffs' ancestor for a town lot, reciting a money consideration, but of 
even date With a bond for title from said ancestor for part of the land sued for, 
the deed being referred to in the bond, and its consideration recited as the lot 
so conveyed, is relevant; and notice having been giving to plaintiffs' attorneys, 
and to one of plaintiffs, to produce the original, land no objection leaving been 
made to the notice as giving insufficient time to produce it, the copy was 
competent testimony.

12. MISTAKE IN DESCRIPTION OF LAND - See facts held sufficient to authorize a 
verdict finding that a conveyance for an undivided half of the east half, meant 
to convey such interest in the West half of a described league of land.



                          Statement of the case

  APPEAL from Freestone. Tried below before Hon. J. B. Rector.
  
  This was an action of trespass to try title in the ordinary former, brought 
March, 1873, in the District Court of Freestone county, by William T. Gainer and 
others, who are appellants, against William Collins and others, who are appellees,
for the league of land upon which the town of Fairfield is situated, originally 
granted to Redin Gainer.
  The plaintiffs claimed as children and heirs of tho grantee, Redin Gainer, and 
his wife, Amelia Gainer.
  The grant was made July 9, 1835, and it was community property.  The wife, 
Amelia Gainer, died December 18, 1842, in Nacogdoches county, leaving no community 
debts.
  Under appropriate pleadings, the defendants set up title to the land sued for, 
under three instruments relied on as conveyances, made by Redin Gainer before the 
death of his wife.
  1. A deed for the east half of the grant, of date July 26, 1836, and made to 
Sparks and Thorn.  The nature of this conveyance, and the testimony adduced, are 
carefully given in the opinion.
2. A title bond bearing date November 27, 1837, signed by Redin Gainer and 
Permelia Gainer, she making her mark, and to David H. Love for one-half of his, 
the said Gainer's, half league of land in Burnett's colony, &c. 
  To the admission of this, proper objection was made; and touching it, on August 
1, 1874, defendant William Gainer made affidavit that it "had been carefully and 
critically examined by him, and that he believes the said title bond to be forged; 
* * * and that he believes the pretended certificate of authentication attached 
* to said pretended title bond * * * is also a forged instrument of writing."
  The defendants then proved the handwriting of the subscribing witnesses thereto, 
and that they were both dead, and that the certificate of H. Owen on the same 
(certificate of authentication) was in the handwriting of said Owen, who lived 
in Robertson county, Texas.
  Defendants proved, further, by one John Karner, that he had had possession of 
the title bond since 1847; that witness received it from D. H. Love, the obligee; 
that Love took possession of the northwest quarter of the Gainer league in 1851.
Witness has had possession of the title bond since 1847. In 1848, witness, by 
mistake, made a deed to Love for part of the east half  At that time, witness 
received the title bond from Love.
  Upon this proof, the judge on the trial admitted the bond in evidence, as follows:
"Know all men by these presents, that I, Redin Gainer, of the Republic of Texas 
and county of San Augustine, am held and firmly bound unto David H. Love, of the 
republic and county aforesaid, in the penal sum of twelve hundred dollars, good 
and lawful money of said republic, the payment of which I bind myself, my heirs, 
executors, and administrators, &c., firmly by these presents. Dated the 27th day 
of November, 1837, under my hand and seal.
  "The condition of this obligation is such, that whereas the said David H. Love 
has this day sold and transferred unto the above-bound Gainer his lot and shop 
in the town of San Augustine, said lot known on the plat of said town as number
216, as will more fully appear by having reference to said transfer, the same 
bearing even date with this obligation:
Now, if the said Gainer shall make, or cause to be made, unto the said Love, or 
his assigns, a good and sufficient title in feesimple to the one-half of his, the 
said Gainer's, half league of land, situated in Burnett's colony, on the west 
side of the Trinity river, as will more fully appear by reference to the title 
issued to said Gainer by George, A. Nixon, Commissioner, said half league to be 
divided into four equal parts, and the shares to be drawn for, the said Gainer 
and Love, mutually: Now, if the said Gainer shall and will truly make, or cause 
to be made, unto the said Love, or his assigns, a good and sufficient deed or 
deeds to the shares of said land as soon as thereunto requested by the said Love, 
then and in that case this obligation shall be void; otherwise to remain in full
force, in law and equity. And further, I, the said Redin Gainer, do by these 
presents bar all law and parts of law in my favor to the full recovery of this my 
obligation, if I fail to do and perform all and singular the covenants therein 
expressed towards perfecting a title in fee-simple to the said Love, to be signed 
by myself and my wife; and in case of performing the same, this obligation to be 
void, and of no effect. Given under my hand and seal this 27th day of November,
A. D. 1837.
(Signed)    "REDIN GAINER.       [L. S.]
" PERMELIA + GAINER. [L. S.]
"Attest: William M. Love, John G. Love."
"REPUBLIC OF TEXAS, }
"Robertson County.  }
  "Personally appeared before me, Harrison Owen, county clerk and recorder in and 
for said county, William M. Love, who, after being duly sworn, saith that he saw 
Redin Gainer and Permelia, his wife, sign, seal, and deliver the foregoing, and 
acknowledge the same to be their own free act for the purposes therein contained.

  "Given under my hand and private seal, having no seal of office, this 20th day 
of December, 1843.
                               "H. OWEN,
[L. S.]               "Recorder of Robertson County."
  (This had been recorded in Robertson county, and recently in Freestone county.)

  The objections urged against the title bond, and which were overruled, were-
1) It is a stale demand, and barred by the statute of limitations, and the evidence 
shows that no possession was taken Under it; that possession was not taken until 
1851 by D. H. Love, and that that possession was not under the title bond, but 
under the deed from John Karner to David H. Love, dated May 31, 1851.
2. Because the title bond was not free from suspicion, Permelia Gainer purporting 
to sign it by her mark, when the testimony shows that she could write her own 
signature, and that the testimony shows that her name was Amelia, and not Permelia, 
and that she was never known or called by any other name than Amelia or Milly.
3. Because proof of the handwriting of the two subscribing witnesses is not 
sufficient to prove up the instrument. 
4. Because the affidavit of one of the defendants, above given, attacking the 
genuineness of the signatures of the makers, and of the certificate of 
authentication,..." requires other proof of its execution than the proof of the 
handwriting of the attesting witnesses."
  The court then, over objections, admitted in evidence a certified copy of the 
deed from D. H. Love to Redin Gainer for the lot number 216, in San Augustine, 
as stated in the title bond aforesaid of same date.
  To the copy, it was objected, because the notice to produce it had not been 
served upon the attorneys of plaintiff until August 10, 1874, (the trial was had 
August 22, 1874,) after the term of the court had commenced, and after said 
attorneys, who reside in Austin, had reached the place of trial, 

                        Argument for the appellants

and after William T. Gainer, who resides in Jackson, had left the place of trial; 
and for other reasons not discussed in the opinion.
  Defendants also read in evidence a deed purporting to be made by John Karner, 
as agent for Redin Gainer, for the northwest corner of the Gainer league of land, 
of date 31st of May 1851, over objections, (1) that Karner had no authority;
(2) because no possession had been taken of said northwest quarter anterior to 
the deed. Prior to this, Karner had testified that he had deeded by mistake the 
northeast corner, and had taken up the title bond, &c. 
  The third deed fiomi Redin Gainer, relied on by defendants, and read in evidence, 
was executed April 17, 1840, to Matthew Cartwright, and purported to convey, one-
half of the east a league of land lying west of the Trinity, and being known as 
a league granted to me, said Redin Gainer, as a colonist and citizen of the State 
of Coahuila and Texas, by Commissioner George A. Nixon, for the colony of David G.
Burnett, said half league of to be divided according to value and quality."
  The court submitted the question of the locality of the land as purchased by 
Cartwright, and a synopsis of the testimony is given in the opinion; it being 
insisted by defendants that the intent was to convey an interest in the west half 
instead of the east. The statement of facts and bills of exceptions to evidence 
admitted, cover, in the transcript, 300 pages. The opinion can be understood 
from the abstract given here.
  Archer Wildy and D. E. Thomas, for appellants.-There are many authorities in 
our own reports going to show that if the title bond offered in evidence in this 
cause by the defense, and admitted over the objections of plaintiffs, was sued
upon for specific performance by the defendants, the suit could not be maintained, 
as the bond would be considered a stale demand-more than ten years having elapsed 
from the time of defendants' cause of action accrued upon the bond. (De Cordova 
v. Smith, 9 Tex., 144; DeWitt v. Miller, 9 Tex., 246, 247; Smith v. Hampton, 13 
Tex., 463; Glasscock v. Nelson, 26 Tex., 152.)
  Under article 4621 of Paschal's Digest, D. H. Love was barred from his right to 
enter upon the land in controversy, as the entry was not made within ten years 
from the date of the bond, or within ten years from his right to enter. The ninth 
instruction was wrong, for the reason that it assumed that there was evidence 
tending to show that Gainer had knowledge of the partition made by Karner, and 
that he afterwards acquiesced in it, when all the evidence upon the subject shows 
that Gainer did not know anything about the partition of the land having been made, 
and that he did not ratify it. There is no principle better settled by the decisions
of this court than that the charge of the court must be applicable to the case 
under investigation as made out by the proof, and if there is no evidence upon a 
certain point, the court has no right to give any instructions upon that point.
(Scranton v. Tilley, 16 Tex., 194; Hancock z. Ioran, 15 Tex., 511; Hardy v. De 
Leon, 5 Tex., 24-5; Wheeler v. Moody, 9 Tex., 378; Hagerty v. Scott, 10 Tex., 
525; Patton v. Gregory, 21 Tex., 513; Smithwick v. Andrews, 24 Tex., 494; Garrett
v. Chambliss, 24 Tex., 619; Norwood v. Boon, 21 Tex., 593.)

                                Argument for the appellees

  Bradley & Kirven, L. J. Farrar, and Likens & Stewart, for appellees.-The payment 
of the purchase-money by D. H. Love, his possession, the payment of taxes on the 
land, the erection of permanent and valuable improvements thereon, and his adverse 
and notorious claim, are all circumstances which would authorize or justify a 
decree against the Gainer heirs of specific performance of the title bond, if 
this were a suit of that kind. (See Varldelman r. Lawson, 17 Tex., 10; 2 Story's 
Eq. Jur., 715; Hemming v. Zimmerschittc, 4 Tex., 159, and 11 Tex., 237; Holman v. 
Criswell, 15 Tex., 394; Stramler v. Coe, 15 Tex., 211; Barbour v. Whitlock, 4 
Monroe, 180, 194,199; Newsom v. Davis, 20 Tex., 419; Sugden's Vendors, 160; Kane 
v. Bloodgood, 7 Johns. Ch., 121.) 
   This is properly and essentially an action of trespass to try title, and the 
plaintixs must recover upon the strength of their own title, and not upon the 
weakness of the title of defendants. (Hughes v. Lane, 6 Tex., 289.)
  The bond for title of Redin Gainer certainly conveys the equitable title to 
D. H. Love, if not the legal title, and would be sufficient evidence of title upon 
which to maintain the action of trespass to try title on the part of the defendants, 
or to resist the same action. (Paschal's Dig., art. 5303; Easterling v. Blythe, 
7 Tex., 210; Miller v. Alexander, 8 Tex., 36.)
  The superior equitable or legal outstanding title in some one else than Redin 
Gainer, defeats the action of the plaintiffs. Such a title, we insist, is furnished 
by the bond for title in this case. (See the last cases cited above, with the
following additional cases: Walker v. Howard, 34 Tex., 478; Burleson v. Burleson, 
28 Tex., 383; Martin v. Parker, 26 Tex., 253; Kinney v. Vinson, 32 Tex., 125.)
  This is not the first instance of the kind, when one who is able to sign his or 
her name, either because of an inability to write the signature well, or for some 
other reason, prefers to sign with a mark. The fact of signing with a mark shows
that Mrs. Gainer did not write the name herself, and if her name was in fact Amelia 
instead of Permelia, the mistake of writing Permelia instead of Amelia is a very 
natural one. If the bond had purported to be signed by Mrs. Gainer herself, and 
was signed Permelia, when her name in fact was Amelia, this would naturally have 
excited suspicion. That suspicion is removed, however, when the bond shows that
Mrs. Gainer used a mark in signing the bond, and that some one else wrote her name 
for her. It is suggested, in this connection, that Milly is a greater departure 
from Amelia than Permelia is from Amelia; and the evidence shows that she was 
indifferently called Amelia and Milly. This would be a case of idem sonans, if 
Mrs. Gainer were indicted under the name of Permelia Gainer.
  If the bond for title be free from suspicion in other respects, we insist that 
it would be sufficient to convey all the title of Gainer, without Mrs. Gainer 
joining the conveyance. The league of land was community property.   (Yates v.
Houston, 3 Tex., 452; Commentaries of Tlamas on the 16th and 17th laws of Toro.)
  The husband, Redin Gainer, had the right and authority, under the Spanish law, 
to dispose of the land in question. (7 White's Recop., 63; Scott v. Maynard, 
Dallam's Dig., 561.) 
  Article 4642 of Paschal's Digest is a statutory affirmance, or recognition of 
this authority of the husband to convey the community property, and is the law 
to-day. Further, at the date of the execution of the bond, it was not necessary 
that there should have been a written instrument to evidence the sale made by 
Gainer, if the purchase-money was paid, and the sale was accompanied with possession. 
(Briscoe v. MeDonough, 1 Tex., 326; Munroe v. Searcy, 20 Tex., 348.)
  In the case at bar, the evidence slows that both Gainer and his wife, and the 
subscribing witnesses to the bond, were dead. Clearly, the bond would have been 
admissible under these circumstances, if the appellees had not been met with the 
affidavit of forgery. The effect of this affidavit was simply to require proof of 
the execution of the bond, in the mode and manner required by law. (See Paschal's 
Dig., art. 3716; Jordan v. Robson, 27 Tex., 615; Younge v. Gilbeau, 3 Wall., 640.)
  What was the mode of proof prescribed by law under the circumstances of the 
case?  The death of the subscribing witnesses having been established, secondary 
evidence of the execution of the bond was rendered admissible, and to prove the 
handwriting of the subscribing witnesses was all that was necessary. And this 
evidence," Mr. Greenleaf says, in the first volume of his work on Evidence, 
section 575, "is in general deemed sufficient to admit the instrument to be
read."  (See, also, the authorities there referred to in Redfield's edition of 
Greenleaf; and 1 Starkie on Evidence, top page 379; and note "A.")
  The affidavit of forgery filed by appellants also attacked the genuineness of 
the certificate of authentication by H. Owens, who was shown to be living. The 
court below permitted proof of the handwriting of Owens to repel the suspicion
raised by the affidavit. holding that it was necessary to produce Owens to testify 
as to his handwriting.. Proof of the, handwriting of Owens by others than himself 
was primary. (See 2 Phillips on Evidence, with Owens', and Hill's, and Edwards' 
notes, top page 501, and note 480, and the authorities there referred to; and also 
page 507 of the same work, and note 482, and the authorities there referred to.)
  The bond was properly admitted in evidence. (Portis v. Hill, 30 Tex., 561; 
Stroud v, Springfield, 28 Tex., 662; Mapes v. Leals Heirs, 27 Tex., 349; Sample 
v. Robb, 4 Harr., (Penn.,) 307; Urket v. Coryell, 5 Watts & Serg., 60; Warren v. 
Lane, 5 S. & R., 60; 3 Bacon's Abr., 591, 592, and the authorities there referred 
to.)
  The statement of facts shows that John EIarner acted as the agent of Gainer in 
making the partition of the west half of the league. While this partition was 
executed in 1851 of the west half of the league, there had been an attempt to make
this partition before, as is evidenced by the deed first made by Karner to Love, 
by mistake of the northeast quarter of the league, which had been already conveyed 
by Gainer to Sparks and Thorne. It was too late at the date of the institution
of this suit to question, the authority of the agent Karner to make this deed, or 
to make the partition. (See Watrons v. McGrew, 16: Tex., 513; Buhols v. 
Boudonsquite, 6 Mart., N. S., 153.)
  It is objected that the notarial copy of the deed to Sparks and Thorne was 
inadmissible. We regard this question as too well established by the decisions of 
this court to admit of serious doubt. (See, upon this point, Moody v. Wheeler, 9
Tex., 372; Herndon v. Casiano, 7 Tex., 322; Paschal v. Perez, 7 Tex., 348; Houston 
v. Perry, 5 Tex., 462; Smith v. Townsend, Dallam's Dig., 569.)
  Upon the principles announced in the cases of Watrous v. McGrew, 16 Tex., 513; 
Dailey v. Starr, 26 Tex., 562; Reese v. Medlock, 27 Tex., 120, the agency of 
Karner was sufficiently established; while we think the defective power of attorney 
to Karner from R. Gainer, in connection with the parol proof admitted, without 
objection, in regard to the agency of Karner, and his acts as such agent, in 
making a division of the west half of the league for the benefit of Love, should 
have been permitted to go to the jury.

                        Opinion of the Court

  MOORE, ASSOCIATE JUSTICE.-This is an action of trespass to try title, brought 
by appellants against appellees, to recover a league of land in Freestone county, 
and upon which the town of Fairfield is situated, granted on the 9th day of July,
1835, by the Governor of Coahuila and Texas, to Redin Gainer.
  Both appellants and appellees claim title under this grant.
  Appellants claim one-half of the league as the community estate of their mother, 
Amelia Gainer, the wife of Redin Gainer at the date of the grant, who died 
December 18, 1842, and the other half as the property of their father, and cast 
upon his heirs on his death in the year 1855; while appellees maintain that the 
legal or equitable title to the entire league of land had been divested out of 
Gainer and wife,--first, by a deed from Redin Gainer to Richard Sparks and Frost 
Thorne, bearing date July 26, 1836, for the east half of said league; second, by 
title bond executed by Redin Gainer and Permelia Gainer, his wife, to D. H. Love, 
dated November 27, 1837, for an undivided half of his (Gainer's) remaining half 
of the league; third, by a deed from Redin Gainer to Matthew Cartwright, bearing 
date April 17, 1840, for, as appellees maintain, the remaining undivided fourth
of said league then belonging to said Gainer, but which, as they say, by mistake, 
was described in said deed as the half of the east half of said league, and which 
said Gainer had previously sold and conveyed to Sparks and Thorne. Appellees all 
claim under one or another of these conveyances; and if they succeeded on the 
trial of the case in the District Court in showing that, by them, the entire 
league of land was divested out of the grantor, Redin Gainer, as they all bear 
date prior to the death of his wife, unquestionably neither she nor said Gainer 
had any interest whatever in the land which could pass to the heirs; and whether 
appellees have title or not, appellants cannot recover the land from them; and 
any errors into which the court may have fallen, if any can be found in the record, 
in its rulings, in respect to the muniments of title upon which appellees severally
relied to connect themselves with one or the other of these conveyances from 
Gainer, is wholly immaterial. If, on the other hand, the entire interest of both 
Gainer and wife in the land was not divested out of them by these instruments,
the judgment must unquestionably be reversed. 
  We need, therefore, only consider the assignments of error which refer to the 
rulings of the court touching, or in some way relating to, the admissibility in 
evidence of these instruments, or the weight and effect to which they were entitled.
  To establish a conveyance of the east half of the league by Gainer to Sparks 
and Thorne, appellees offered, and the court admitted in evidence, the testimonio 
of an act of sale to them, passed, in the usual form of conveyances at that date, 
by Gainer before Adolphus Sterne, judge of the first instance for the jurisdiction 
of Nacogdoches, where the parties seem to have then resided, and within which the 
land sued for was then located. The execution of this instrument was acknowledged
by Sterne, by whom it was made, on the 12th of March, 1838, before Charles S. 
Taylor, chief justice of Nacogdoches county; and, on this acknowledgment, was 
recorded in Milam county March 24, 1838. 
  Quite a number of objections were made to the introduction of this instrument. 
All of them, however, were, as we think, properly overruled. Certainly it was 
frivolous to object to the introduction in evidence of a conveyance for one half
of the land for which the plaintiffs were suing, because it may have been 
irrelevant in respect to the controversy as to the other part of the league. 
This, if true, would have been a matter for instruction to the jury.
  The instrument offered in evidence was not, as appellant's counsel suppose, a 
copy of the deed, but was the second original, delivered to the vendee to serve 
him as evidence of his title; and at the time it was executed would have been 
evidence of the sale of the land, without other proof of its execution than the 
certificate of the primary judge by whom it was made and delivered to the vendees. 
The protocol or first original became an archive in charge of the judge before
whom the sale was consummated; and by the statute of December, 1836, organizing 
the County Court, it was required to be deposited in the office of the county 
clerk of Nacogdoches county. (See section 33 of act organizing inferior courts, 
approved December 20, 1836.) There was no authority of law authorizing its 
withdrawal from the custody to which it was committed by this statute. If it had, 
previous to the passage of this law, gone into the hands of the vendees, they 
might, no doubt, have had it proven up and recorded under the registration laws; 
and it would then have been admissible in evidence, as any other registered 
instrument. (McKissick v. Colquhoun, 18 Tex., 148.) Or a certified copy of the 
protocol by the clerk of the County Court of Nacogdoches county, in whose custody 
it should and, as we must presume, did remain, under the act of January 19, 1839, 
(see Laws 1st Sess. 3d Cong., p. 47,) might have been recorded in the county 
where the land was situate; and such copy would also have been admissible in 
evidence as a recorded. instrument. But it was the testimonio or second original,
and not the first original or protocol, which the law of 1836 contemplated should 
be proved and recorded in the county wherein the land lies. (Laws 1st Cong., 
pp. 154, 155, secs. 33, 37.)
  That the acknowledgment of his signature by the officer before and jointly with 
whom the protocol was executed, and by whom the testimonio was made and delivered 
to the party interested to whom it was to serve for a title, is sufficient to 
admit the testimonio to record, has been too long and well established by this 
court for question. (Edwards v. James, 7 Tex., 372; Beaty v. Whittaker, 23 Tex., 
526.) The instrument to the introduction of which objection was made in the last 
of these cases, was the counterpart of that now under discussion. It was the 
testimonio of an act of sale for a league of land, situated, at the time of trial, 
like this one, in Freestone county. The sale was executed before Adolphus Sterne, 
primary judge of Nacogdoches county, November 14, 1836, who afterwards, as here, 
acknowledged his signature before the chief justice of Nacogdoches county; and 
on this certificate the testimonio was recorded, like this instrument, first in 
the county of Milam, on March 21, 1838. True, it was afterwards also recorded in 
Freestone county; but not until after the deed to the defendant had been placed 
upon record in that county. The court says: "The manner of proving the instrument 
for registration, in this instance, has been held by this court sufficient for 
that purpose;" though its admissibility did not depend upon its registration, as 
the party claiming under it, after the objections to it had been overruled, proved 
that Sterne and the assisting witnesses to the testimonio were dead, and that 
their signatures were genuine.
  Though the act creating the county of Robertson was enacted before the record 
of this instrument in Milam county, it was proved that Robertson county had not 
been then organized, and that deeds for land in that part of Milam county out of 
which the county of Robertson was created were, at that date, still recorded in 
Milam county. 
  It is not controverted, that the legal effect of the deed, if its authenticity 
was properly established, vested the title to the east half of the league sued 
for in the vendees, Sparks and Thorne; and as the objections to its introduction 
as evidence, as we have seen, were correctly overruled, and no countervailing 
testimony was introduced by appellants, it cannot be doubted that the jury were 
fully warranted in concluding that such was its effect.
  Second. Four objections were made by appellants to the introduction in evidence 
of the bond of November 27, 1837, from Redin Gainer and Permelia Gainer, relied 
upon by appellees to prove the sale by Gainer to D. I-I. Love of an undivided 
half of the remaining half of the league of land granted him, which he then owned; 
but only one of these objections, if well taken, can be said to present any ground
for the exclusion of the bond from the consideration of the jury. The others 
suggest matters for the consideration of the jury, in regard to the genuineness 
of the bond, and appellees' rights under it. We may, however, just as well consider
them now as at any other time, as well as all other questions bearing upon this 
branch of the case, relied upon by appellants for its reversal.
  On the 11th of August, 1874, nearly thirty-seven years after its date, and 
more than thirty years after its execution had been properly proven for record, 
and after it had been on record for nearly that length of time, as we may infer,
William T. Gainer, one of the plaintiffs, made oath that he believed said bond to 
be a forgery, and that he believed the certificate of authentication upon which 
it was admitted to record was also a forgery. The affidavit of the belief of the 
forgery of the bond precluded appellees from introducing it in evidence as a 
recorded instrument, (Paschal's Dig., art. 3716,) and imposed upon them the 
necessity of proving its execution as at common law. But the last clause of the 
affidavit was not required or called for, and gave no additional force or effect 
to the first, and did not require of appellees additional proof of the execution 
of the bond, before it could go to the jury. If proved as a fact, it might have 
been a circumstance to be considered by the jury in passing upon the genuineness
of the bond. But it was not thus proved. On the contrary, appellees proved that 
the certificate was in the handwriting of the officer by whom it purported to 
have been made; and no effort whatever was made by appellants to rebut this 
evidence, or to sustain the charge insinuated in the affidavit, or to show a 
foundation for affiant's belief that it was forgery.
  The bond was not offered in evidence as a recorded instrument, but its execution 
was proved beyond the strictest requirements of the common law.   "An instrument," 
says Mr. Greenleaf, (vol. 1, sec. 569,) "when produced and freed from suspicion, 
must be proved by the subscribing witnesses, or one of them." Evidently, the 
suspicion from which the instrument offered must be freed before its execution 
may be proved by the subscribing witnesses, must arise from something apparent 
upon the face of the instrument. It is something of which the judge must take 
notice, and upon which he can act; and not matter of suspicion raised by extraneous 
evidence adduced by the opposite party, though proper to be considered by the 
jury in determining whether the instrument is genuine vel non. Where the 
subscribing witnesses are dead, or other sufficient reason is shown for their 
absence, and it appears the party by whom the instrument purports to have been 
executed is the person against whom it is sought to be used, proof of the 
handwriting of one of the subscribing witnesses is sufficient to admit it to be 
read as evidence to the jury. (1 Greenl. Ev., sees. 572, 575.) Here, although
suspicion may have been cast upon the instrument by the proof offered by 
appellants to impeach its genuineness, certainly nothing of this sort appears 
upon the face of the bond. The identity of the purported obligor in the bond and 
the original grantee of the land, who was fully authorized to dispose of it 
without being joined by his wife, does not admit of question. The handwriting of 
both the subscribing witnesses was fully and satisfactorily proved.
  If their handwriting had not been proven,-as the bond when offered appeared to 
be more than thirty years old; came from the proper custody; was free from blemish 
by any apparent alteration; was shown to have been in the possession of the 
obligee but a few months after its date; had been placed upon record in the 
proper county for more than thirty years; had been acted upon; and possession of 
the land had been held by obligee, and many others claiming under him, for more 
than twenty years,-evidently it was admissible in evidence without either 
accounting for the subscribing, witnesses, or proof of their handwriting, or of 
that of the obligors. (1 Greenl. Ev., sees. 21, 570.)
  It is not to be denied, that the discrepancy between the true name of Mrs. 
Gainer and that found attached to the bond, and the fact that she could write, 
and was never known by any of the witnesses who testified upon the subject to have
had her name written for her by any one but herself, or to have executed an 
instrument by making her mark instead of writing her name, while this bond 
purports to have been signed by her by making a mark, are circumstances well 
calculated to throw strong suspicion upon its execution by her; but the 
conclusions to be drawn from these circumstances were addressed to the jury, and 
not to the court. The law upon this point was correctly and clearly presented in 
the charge of the court; and, while admitting the full force of the evidence of 
appellant tending to impeach the genuineness of the bond, we think it cannot be 
denied that the countervailing testimony of appellees was amply sufficient to 
sustain the conclusion of the jury in its favor. 
  The objection that Love's possession was not under the bond. but under the deed 
made by Karner, as attorney in fact for Gainer, in satisfaction of the bond, does 
not require serious notice. If the power of attorney under which Karner acted was 
valid, Love went into possession and held under and by virtue of the bond, as 
well as the deed executed in accordance with its stipulations. If the power, as 
appellants maintain, was invalid, the deed was not a discharge of the bond, and 
it was certainly as efficacious to support Love's possession as if he had entered 
upon the land directly under it, without any deed whatever having been made him. 
The objection that the bond was stale, or barred by limitation, when Love took 
possession of the land, goes to the legal effect and consequences which follow 
from such possession, instead of furnishing a ground for the exclusion of the bond
as evidence. But we do not propose to place our answer to the objection on grounds 
so technical. If the objection had been made in the proper manner, by an 
instruction as to the legal effect of the evidence, it would have presented no 
better reason for the reversal of this judgment than it does as here made. It 
may be true, that, under the common law, a bond for title, even when it shows 
upon its face that the purchase-money has been fully paid, vests in the purchaser 
only an equitable title; that the vendee, by delay, may lose his right to demand 
of the vendor the legal title, which in such case he holds in trust for the vendee; 
that the vendee's right tinder the bond may become stale, or barred by the lapse 
of time; and that, by neglect and delay in acting upon the bond, he may become 
unable to enforce his superior equitable title, or to recover the land from the 
vendor, wrongfully in possession under the naked legal title. Or, even if we go 
still further, and admit that although the purchaser is in possession, of the land 
under a bond for title which shows performance of the contract on his part, the 
vendor, after the lapse of sufficient time to bar an action on the bond, may, by 
reason of its superiority at common law to the equitable title, recover the land 
from his vendee; though certainly we know of no authority to support such a 
proposition. Still this would not meet the present case. The doctrine which 
appellants attempt to invoke and apply to it springs from and has no foundation 
save in the technical distinctions of the common law between legal and equitable 
titles. But the bond from Gainer to Love is not a common-law instrument. It was
made before the introduction of the common law as the rule of decision in Texas. 
If, by the bond, any right to or interest in the land vested in Love, it was not 
a mere equity, which might become stale or be lost by his failure or neglect to 
assert it, or to demand some other character of conveyance. The purchase-price 
being fully paid, and the sale being absolute and unconditional, so was Love's 
title. A more formal conveyance, or one which would better serve as evidence of 
the sale, might be desirable, and, if stipulated for, might be enforced by the 
appropriate tribunal, if its aid were invoked in the proper time and manner; but 
when made, it would merely afford more formal or satisfactory evidence of the title
already vested in the purchaser, and would not confer a different character of 
right to that by which he previously held. This being the nature of the contract 
at the date of its execution, it was not affected or changed by the subsequent 
introduction of the common law, with its technical distinctions between legal and 
equitable titles. (Hanrick v. Barton, 16 Wall., 174.)
  Love, from the date of his purchase and payment, was the absolute owner of the 
land. His delay in taking possession in no way lessened his right or affected his 
title, there being no one in adverse occupancy of it. 
  An absolute title to an undivided half of the western half of the league being 
vested in Love by the title bond, it is unnecessary for us to examine the questions 
discussed by counsel, touching the validity of the deed of May 31, 1851, by Karner, 
as the attorney of Gainer, unless it should become necessary to determine whether 
Love, and those holding under him, are forced to rely upon this deed to maintain 
title to the specified part of the league which they claim, or are entitled merely 
to an undivided half of the western half of it, as stipulated in the bond. And 
this, evidently, will depend upon the fact, whether appellants are entitled to 
the whole or any part of the remaining quarter of the league claimed by some of 
the appellees under the deed from Gainer to Cartwright.
  It is only necessary to add, in adverting to what has been said upon this 
branch of the case, that the court did not err in overruling the objections to 
the copy of the deed from Love to Gainer for the lot and shop in the town of San
Augustine. Appellants did not except to the notice to produce the original deed 
for want of time to enable them to do so, but merely because of the distance at 
which they lived from the place where the court was sitting; but they neither
alleged that the original was not accessible to them, when notified to produce 
it, nor that it was then beyond their reach, but that they would be able to 
produce it at a subsequent day. The objection, that the deed was wholly irrelevant
to the issues involved in the case, is untenable.  It unquestionably tends to 
support the genuineness of the bond to Love, and to prove that he had fully paid 
for the land sold him by Gainer.
  Third. On the 17th of April, 1840, Gainer executed and delivered to Matthew 
Cartwright a deed, whereby, in consideration, as recited in the deed, of the 
payment to him of the sum of one thousand dollars, he purports to convey to said
Cartwright an undivided one-half of the east half of the league of land here in 
controversy. To the introduction of this deed appellants made no objection, but 
have assigned as error the instructions of the court, under which the jury by
their verdict found, in effect, that it was the intention of Gainer to sell and 
Cartwright to buy an undivided half of the west half of said league; and that 
the land intended to have been conveyed was mistakenly described in the deed as
the "undivided half of the east half." The appropriateness of the charge or 
correctness of the verdict is not questioned by appellants, if there was sufficient 
evidence upon which to predicate the one and to sustain the other; but this they
deny; and unless they are able to make good their denial, they have no cause to 
complain of the judgment, or to ask for its reversal.
  Unquestionably, there is no direct evidence of the alleged mistake; but evidently 
it was permissible to prove it by circumstantial evidence, just like any other 
fact upon which the jury were called to pass. Were there, then, any facts and
circumstances in evidence tending to prove it, of sufficient pertinency to warrant 
the charge of the court? We think there were. More than three years prior to the 
date of the deed to Cartwright, Gainer had parted with all his interest in the
east half of the league. There is nothing in the record to raise an inference that 
he ever denied the validity of his conveyance to Sparks and Thorne, or that he 
had repudiated or disputed their right to the land which he had conveyed to them. 
After making this conveyance he only claimed one half of the league. When talking 
with Karner about making the division for Love, he seemed to suppose that it was 
the east half of the league from which Love's quarter was to be taken. The 
inference is not unnatural, that he may have forgotten which half of the league 
had been conveyed to Sparks and Thorne. When this deed to Cartwright was made, 
Gainer owned but an undivided half of the west half of the league. If he intended 
to sell any other part of it, he designed, as we would have to infer from the 
evidence in the record, to perpetrate a fraud. This surely should not be presumed. 
It does not appear that he ever, subsequently to the executing of this deed, paid 
taxes upon any part of the league, or looked after or manifested any interest in 
it whatever; and though, subsequently, so hardly pressed as to be forced to appeal 
to his daughter for pecuniary assistance to return to Texas, he makes no allusion 
to any interest which he still had or claimed in it. So far as shown, he made no 
effort, though from his own statements utterly broken in health and fortune, to 
make the valuable interest which it is now claimed he had in this land of any 
avail to him. In view of these facts, we think it cannot be said that there was 
no evidence to warrant the charge of the court or to support the verdict.
The judgment is affirmed.
                                                    AFFIRMED.