BBOWB, Associate Justice.
One William Wallace was first sergeant in the company of Captain P. S. Wyatt, in the army of the Be-public of Texas, and fell at the massacre of Goliad on the 27th day of March, 1836. Two bounty warrants for land were issued to the heirs of said William Wallace, one for 1920 acres, and the other for 640 acres of land. Two headright certificates were also issued to said heirs, the first for one-third of a league, and the second for two-thirds of a league and labor, the latter being an augmentation certificate.
Two sets of heirs claim the lands in controversy, which were located and patented by virtue of the last named certificate. One set, the plaintiffs below, the defendants in error in this court, claim that William Wallace, who fell at Goliad, and in whose right the certificate was issued, was a single man, and came from Crawford County, Georgia; while the defendants below, plaintiffs in error in this court, claim that said William Wallace was a married man, and that he came from Bock-
bridge County, Virginia. Under the law the heirs of a single man were entitled to a headright certificate for one-third of a league, and those of a man the head of a family were entitled to a certificate for a league and labor of land. Act February 9, 1850; Gen. Laws 1849, p. 153.
The plaintiffs sued as the heirs of the Georgia Wallace, and the defendants claimed the land under the heirs of the Virginia Wallace. The questions involved are, was the Wallace who fell at Goliad the man who is claimed to have come from Georgia, and are the plaintiffs his heirs?
The District Court gave judgment for the plaintiffs, which was af-. firmed by the Court of Civil Appeals, which found, as conclusions of fact, that the Wallace who fell at Goliad was a single man, and that plaintiffs are his heirs.
In order for the plaintiffs to recover in this case, it was necessary for them to prove that the William Wallace under whom they claimed was the person who fell at the massacre of Goliad, and in whose right the certificate was issued by virtue of which the land was located, and that they were his heirs. Under the facts presented in this case, it must have been shown that the Wallace under whom plaintiffs claim, if he were the deceased soldier as claimed, left neither wife nor child at the time of his death.
The court charged the jury as follows:
“1. If you find and believe from the evidence that the William Wallace who was a member of Captain P. S. Wyatt’s company, and fell with Fannin at Goliad, in March, 1836, was from Crawford County, Georgia, and was a son of Robert Wallace, and nephew of W. C. Wallace, and that the plaintiffs are the descendants of said W. C. Wallace, and the heirs of William Wallace, you will find for the plaintiffs all the land in controversy, unless you find for the defendants against the plaintiff W. C. Wallace, under the fourth subdivision of this charge, otherwise you will find for the defendants.
“2.
If you find and believe from the evidence that the William Wallace who was a member of Captain P. S. Wyatt’s company, and fell with Fannin at Goliad in March, 1836, was from Rockbridge County, Virginia, you will find for the defendants.
“3.
In order for plaintiffs to be the heirs of William Wallace, William Wallace must have been the nephew of W. C. Wallace, of Crawford County, Georgia, and died, leaving neither father nor mother, grandfather nor grandmother, living.
“4. If you find and believe from the evidence that defendants had peaceable and adverse possession of the premises in controversy, using same and paying taxes thereon, and claiming the same under deeds duly registered for five years next before the 23rd day of September, 1890,
you will find for the defendants, Byers Bros., against W. C. Wallace, one-third of 1271 acres of the land in controversy.
‘ ‘ 5. Adverse possession, as hereinbefore used, is an actual and peaceable appropriation of the land, commenced and continued under a claim of right, inconsistent with and hostile to the claim of another.
“6. Ton are the sole judges of the weight of the testimony and the credibility of the witnesses, but you must receive the law of the case from the charge of the court.”
The defendant’s asked the court to charge the jury as follows, which charge was refused:
“The plaintiffs claim that they are descendants of one William C. Wallace, and that William C. Wallace had a nephew by the name of William Wallace, who came from Crawford County, Georgia, to Texas in 1835. In order for the plaintiffs to be the heirs of the William Wallace who is claimed to have immigrated to Texas, it is necessary for you to believe from the evidence that the said William Wallace left surviving him neither wife nor child, father nor mother, grandfather nor grandmother, and unless you so believe from the evidence, you will find for the defendants without any further investigation.”
By the third charge given, the court assumed that William Wallace, under whom plaintiffs claimed, was a single man, and withdrew that issue from the jury. It was a material fact to be proved affirmatively by the plaintiffs, by which we do not mean positively, but just like any other material fact; and it was not established by the absence of evidence to the contrary.
A court has the right to assume the existence of a material fact
only
when the evidence is uncontradicted and of that conclusive character that a jury could not find against it. Railway v. Cornell, 84 Texas, 541. Moreover, this certificate could not have been granted to any but a head of a family, and that upon very strict proof. The courts will presume that the officers did their duty, that the proof was made and is true, until it be proved to the contrary. McNeil v. O’Connor, 79 Texas, 227.
The only witness who testified to any fact or circumstance bearing upon that issue was William Wallace, one of the plaintiffs, who by his own statements must have been quite young when he knew William Wallace of whom he speaks; he was an interested party, and in the course of his evidence he said, “I am not prepared to say William Wallace was not a married man.” He denied having stated in a previous deposition that he never knew William Wallace, but the deposition was read, in which it appears that he testified, “not having ever seen my cousin William nor his handwriting,” etc.; showing a clear contradiction upon this point, unexplained so far as this record shows. Prom this condition of the testimony it is clear that the evidence of
this witness was "not of that character which a jury could not disregard, although not directly contradicted upon the given point.
It is sometimes the case that a witness will testify to facts which in their nature or the lapse of time or other causes, can not be contradicted, and the only protection that the opposite party has is in a cross-examination by which to show self-contradiction, inconsistencies, or other evidences of a want of veracity or correctness of memory, and in all such cases the jury must pass upon the credibility of the witness. The court erred in refusing the second charge requested by the defendants.
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BBOWB, Associate Justice.
One William Wallace was first sergeant in the company of Captain P. S. Wyatt, in the army of the Be-public of Texas, and fell at the massacre of Goliad on the 27th day of March, 1836. Two bounty warrants for land were issued to the heirs of said William Wallace, one for 1920 acres, and the other for 640 acres of land. Two headright certificates were also issued to said heirs, the first for one-third of a league, and the second for two-thirds of a league and labor, the latter being an augmentation certificate.
Two sets of heirs claim the lands in controversy, which were located and patented by virtue of the last named certificate. One set, the plaintiffs below, the defendants in error in this court, claim that William Wallace, who fell at Goliad, and in whose right the certificate was issued, was a single man, and came from Crawford County, Georgia; while the defendants below, plaintiffs in error in this court, claim that said William Wallace was a married man, and that he came from Bock-
bridge County, Virginia. Under the law the heirs of a single man were entitled to a headright certificate for one-third of a league, and those of a man the head of a family were entitled to a certificate for a league and labor of land. Act February 9, 1850; Gen. Laws 1849, p. 153.
The plaintiffs sued as the heirs of the Georgia Wallace, and the defendants claimed the land under the heirs of the Virginia Wallace. The questions involved are, was the Wallace who fell at Goliad the man who is claimed to have come from Georgia, and are the plaintiffs his heirs?
The District Court gave judgment for the plaintiffs, which was af-. firmed by the Court of Civil Appeals, which found, as conclusions of fact, that the Wallace who fell at Goliad was a single man, and that plaintiffs are his heirs.
In order for the plaintiffs to recover in this case, it was necessary for them to prove that the William Wallace under whom they claimed was the person who fell at the massacre of Goliad, and in whose right the certificate was issued by virtue of which the land was located, and that they were his heirs. Under the facts presented in this case, it must have been shown that the Wallace under whom plaintiffs claim, if he were the deceased soldier as claimed, left neither wife nor child at the time of his death.
The court charged the jury as follows:
“1. If you find and believe from the evidence that the William Wallace who was a member of Captain P. S. Wyatt’s company, and fell with Fannin at Goliad, in March, 1836, was from Crawford County, Georgia, and was a son of Robert Wallace, and nephew of W. C. Wallace, and that the plaintiffs are the descendants of said W. C. Wallace, and the heirs of William Wallace, you will find for the plaintiffs all the land in controversy, unless you find for the defendants against the plaintiff W. C. Wallace, under the fourth subdivision of this charge, otherwise you will find for the defendants.
“2.
If you find and believe from the evidence that the William Wallace who was a member of Captain P. S. Wyatt’s company, and fell with Fannin at Goliad in March, 1836, was from Rockbridge County, Virginia, you will find for the defendants.
“3.
In order for plaintiffs to be the heirs of William Wallace, William Wallace must have been the nephew of W. C. Wallace, of Crawford County, Georgia, and died, leaving neither father nor mother, grandfather nor grandmother, living.
“4. If you find and believe from the evidence that defendants had peaceable and adverse possession of the premises in controversy, using same and paying taxes thereon, and claiming the same under deeds duly registered for five years next before the 23rd day of September, 1890,
you will find for the defendants, Byers Bros., against W. C. Wallace, one-third of 1271 acres of the land in controversy.
‘ ‘ 5. Adverse possession, as hereinbefore used, is an actual and peaceable appropriation of the land, commenced and continued under a claim of right, inconsistent with and hostile to the claim of another.
“6. Ton are the sole judges of the weight of the testimony and the credibility of the witnesses, but you must receive the law of the case from the charge of the court.”
The defendant’s asked the court to charge the jury as follows, which charge was refused:
“The plaintiffs claim that they are descendants of one William C. Wallace, and that William C. Wallace had a nephew by the name of William Wallace, who came from Crawford County, Georgia, to Texas in 1835. In order for the plaintiffs to be the heirs of the William Wallace who is claimed to have immigrated to Texas, it is necessary for you to believe from the evidence that the said William Wallace left surviving him neither wife nor child, father nor mother, grandfather nor grandmother, and unless you so believe from the evidence, you will find for the defendants without any further investigation.”
By the third charge given, the court assumed that William Wallace, under whom plaintiffs claimed, was a single man, and withdrew that issue from the jury. It was a material fact to be proved affirmatively by the plaintiffs, by which we do not mean positively, but just like any other material fact; and it was not established by the absence of evidence to the contrary.
A court has the right to assume the existence of a material fact
only
when the evidence is uncontradicted and of that conclusive character that a jury could not find against it. Railway v. Cornell, 84 Texas, 541. Moreover, this certificate could not have been granted to any but a head of a family, and that upon very strict proof. The courts will presume that the officers did their duty, that the proof was made and is true, until it be proved to the contrary. McNeil v. O’Connor, 79 Texas, 227.
The only witness who testified to any fact or circumstance bearing upon that issue was William Wallace, one of the plaintiffs, who by his own statements must have been quite young when he knew William Wallace of whom he speaks; he was an interested party, and in the course of his evidence he said, “I am not prepared to say William Wallace was not a married man.” He denied having stated in a previous deposition that he never knew William Wallace, but the deposition was read, in which it appears that he testified, “not having ever seen my cousin William nor his handwriting,” etc.; showing a clear contradiction upon this point, unexplained so far as this record shows. Prom this condition of the testimony it is clear that the evidence of
this witness was "not of that character which a jury could not disregard, although not directly contradicted upon the given point.
It is sometimes the case that a witness will testify to facts which in their nature or the lapse of time or other causes, can not be contradicted, and the only protection that the opposite party has is in a cross-examination by which to show self-contradiction, inconsistencies, or other evidences of a want of veracity or correctness of memory, and in all such cases the jury must pass upon the credibility of the witness. The court erred in refusing the second charge requested by the defendants.
The charge given by the court did not inform the jury upon which party rested the burden of proof, or that plaintiffs were required to establish their right by a preponderance of the evidence. The defendants asked the court to give the following charge, which was refused: “The plaintiffs must recover, if at all, upon the strength of their own title, and must establish their case by a preponderance of the evidence, and should you be unable to decide from the evidence what Wallace was a member of Captain P. S. Wyatt’s company and perished at Goliad, you will find for the defendants.”
It is the law of this character of cases, that the plaintiff must recover upon the strength of his own title and not upon the weakness of the defendant’s title; that is, the plaintiffs must have shown a right in themselves or fail, notwithstanding it did not appear that the defendants had any right whatever. The case for plaintiffs must, be a prima facie case, that is, one upon which they could recover if no evidence was offered to the contrary; and when the defendants offered evidence tending to disprove plaintiffs’ ease, then it became a question of the preponderance of the evidence,. which must be on plaintiffs’ side, or the jury must find for the defendants.
In this case there was no doubt that
a
William Wallace fell at Goliad, and the certificate was issued in his right. The question was, whether it was the
Georgia
William or the
Virginia
William. If the plaintiffs showed a state of facts which if not contradicted would entitle them to recover, then by the proof offered by defendants tending to show that the deceased soldier was from Virginia, it became a question as to whether or not the evidence preponderated in favor of the plaintiffs. If it did not the verdict should have been for the defendants. Clark v. Hills, 67 Texas, 141. In the case last cited the material question was the location of a certain line, and the court instructed the jury, in effect, that plaintiff must establish his case by a preponderance of the evidence, under which charge the jury returned the following verdict: “Under the instructions in the charge of the court to the jury that the burden of proof in this case is upon the plaintiff, and not being able to agree upon the location upon the ground, or the lines of the
Ponce grant as defined in the original field notes, we agree upon a verdict for the defendants.”
In that case this court, in commenting upon the verdict, said: “If it appears that the preponderance of the proof is not in favor of the party having the onus the verdict should be against him. If the testimony is evenly balanced and he has failed to establish the issue, but has left it in doubt whether he has sustained it or not, that doubt must inure to the benefit of his adversary.”
In this case, more than fifty years had elapsed since the facts transpired upon which the rights of these parties depend, and it is often impossible to bring direct proof of them; uncertain circumstances must be resorted to, and it is possible that a jury might be left in a condition of mind that they could not say that there was a greater probability of truth in favor of one side than the other. In such condition, the man unlearned in the law might well be expected to determine the contest according to some other influence brought to bear upon him. Hence it is important that the jury should in a proper case be informed of the rule of law by which they must solve that difficulty. This was a case in which such a charge would have been appropriate, and in which it was necessary to charge as to the preponderance of the evidence.
The court erred in refusing the fourth charge requested by the defendants.
In view of another trial, we will examine some of the objections made to the ruling of the trial court in admitting and excluding evidence.
Over the objections of the defendants, the court admitted in evidence the contents of a letter written by Samuel Wallace to his sister Rebecca, to the effect that he had heard reports that William Wallace, the one claimed to be from Virginia, was to be married to two different persons. This was strictly hearsay and irrelevant testimony, and should have been excluded. We are not able to say that it did not or might not have influenced the jury. When the evidence consists of circumstances and declarations made long since, there being a sharp conflict, as in this case, it is most important that irrelevant evidence should not be permitted to go to the jury. The object of the law in excluding such testimony is to prevent the jury from being influenced thereby. A jury can not tell whether evidence is irrelevant or not, and may attach importance to that which a lawyer or a judge would disregard.
The court also admitted, over objections of defendants, the declarations of William Wallace, through whom the plaintiffs claim title, to the effect that he had a nephew in Texas named William Wallace, who was killed at Goliad in the Fannin massacre. The evidence shows, that if the declarations were true, the declarant was the only heir of the party to whom the declarations related. The declaration must have
been made after .the supposed death of the nephew, and goes directly to establish the title of the declarant as the sole heir of the nephew. It was a self-serving declaration, made in the interest of the declarant, and should have been excluded. 1 Whart. on Ev., sec. 207; Plant v. Taylor, 7 H.
&
N., 237; Morrill v. Foster, 33 N. H., 370.
The plaintiffs were permitted to prove by William Wallace, one of the plaintiffs, over defendants’ objection, that according to his family history William Wallace, the father of witness, under whom plaintiffs claim title, had a nephew named William Wallace, who went to Texas in the spring of 1835, for the purpose of enlisting in the Mexican war, and was killed in 1836, at what was known as Fannin’s massacre.
The defendants offered to prove by the depositions of Joseph Wal- ’ lace, that Samuel Wallace, a cousin of the William Wallace who is claimed to have come from Virginia, wrote a letter from Goliad a few days before the massacre, in which letter it was stated that “William Wallace, the cousin of the writer, was there, and was a member of a company from Huntsville, Alabama.” The writer was in Texas, and was killed at the same massacre. This was objected to by plaintiffs because it was hearsay, and it was by the court excluded.
The evidence admitted and that excluded was equally hearsay, and unless there is a difference as to the subject matter of the declarations in the letter and that shown by the family history which might distinguish them, they were equally admissible or inadmissible. Family history is nothing but the declaration of different members of a family repeated by so many persons and for such a time as to become common repute in the family. Upon the same subjects the family history and the declarations of a deceased member of a family are equally admissible; the weight to be given to each depends upon the circumstances, and is a question for the jury, not a question of admissibility. In this case the family history was to the effect that one William Wallace, from Georgia, started to Texas to enlist in the army, and was killed at the Fannin massacre. In the case of the letter which was rejected, the subject was the presence in Texas, and his actual membership in a company of the army, of another man of the same name, and the letter, taken with other facts, would tend to prove that this William Wallace was killed at that time and place. The family history must have consisted of declarations made by different members of the family repeating what had been learned from others as to the death of that William Wallace, while in the letter the writer stated what he saw and knew at the time, and from which, with other facts, the death, its place and manner, might be inferred. It is certainly no objection to declarations when admissible that they are the statements of what the declarant knows, rather than what he heard. The letter was at least admissible equally with the family history. Should both have been admitted or excluded, is the question for us to determine. It is too well settled
that hearsay evidence, such as is contained in the declarations proved and those excluded, are admissible to prove pedigree, to admit of discussion or to require authority. The question is, were the statements as to independent facts, such as being a member of the army, presence in Texas, or the time and place of death, admissible under the rule ? It is often stated that declarations of deceased members of a family are not admissible to prove the time nor place of birth, residence, or death. But this rule has been applied in the main to cases in which the poor-laws were being administered, and a right was being asserted based upon the residence or birth at a given place. Where the time or place of residence or death is introduced for the purpose of identifying the person in question as a member of a particular family, it is admissible as being so closely related to, if not in fact part of, pedigree, that the same rules of law are applicable. Mr. Phillips, in his work on Evidence, volume 1, p. 207 (fifth American edition) states the rule so tersely that we copy it as the best statement of the proposition that we have been able to find. Hesays: “Locality may, however, beso involved in pedigree as to fall within the general rule and render hearsay evidence admissible on the subject; as where the object is to identify certain persons connected with a particular place as belonging to a family. ’ ’ This rule is well supported by many authorities both English and American, and as we believe by sound principles of law. We cite the following authorities as applicable and in support of this rule: Hubback Successions, 332; Shields v. Boucher, 1 De Gex & S., p. 40; Winder v. Little, 1 Yeates (Pa.), 152; Bishop v. Nesbitt, 2 M.
&
R., 554; Wise v. Wynn, 59 Miss., 381; Mullery v. Hamilton, 71 Ga., 720; Cuddy v. Brown, 78 Ill., 415; Morrell v. Foster, 33 Conn., 379; Ins. Co. v. Rosengale, 77 Pa. St., 507; McNeil v. O’Connor, 79 Texas, 227.
An elaborate and able discussion of the question will be found in Shields v. Boucher cited above. In Bishop v. Hesbitt, Rolfe, B., draws the distinction very clearly. In the last case the question was as to the admissibility of a declaration by a deceased party when he left home that he was going to a certain place to visit relatives who lived there; it was objected that place could not be proved by such declarations, and Rolfe, B., said: “The declaration is not evidence of the fact that the father of witness did go to Blackburn, or that any one of the name of Babb was living there; but it is evidence of a tradition in the family that they had relations living at Blackburn; and in the event of its being shown by other evidence that there were persons by the name of Eabb living at Blackburn, this declaration may be referred to, to connect that person with the family now spoken of.”
In the case of Wise v. Wynn, 59 Mississippi, 588, the court, after stating the rule asserted by some courts to the contrary, say: “The later and better considered cases, however, repudiate this distinction between declarations as to place and those touching other family mat
ters, where the inquiry is one strictly of pedigree, and the declarations as to place are not relied on as giving any right by reason of the place, but proof as to place is made merely by way of identification of the person or family.”
If this were a suit against the State to establish the right to the certificate (in some cases it was allowed to heirs to sue for that purpose), then the declarations as to the place of death would not be admissible, for the grant was made for the reason that the deceased fell at that time and place, as a principal cause why the heirs should receive the certificate. The certificate, however, has been granted to the heirs of William Wallace, who fell at Goliad in Captain Wyatt’s company. The right of the heirs of
the
William Wallace who fell at the time and place named is established, and the question for decision was, which of the claimants, if either, were the heirs or claimed under the heirs of that William Wallace. To connect the deceased soldier with the family of each claimant was the sole.object of the evidence.
In McNeil v. O’Connor, 79 Texas, 227, evidence of the declarations of the deceased wife of McReil was admitted to prove his residence at one time to have been in Jasper County. The evidence was not objected to, but it is commented upon by Judge Stayton in the opinion delivered by him, as if not questioned.
The evidence admitted and that excluded was admissible for the purpose of identifying the deceased as a member of the family; it was so closely connected with the pedigree that it comes within the rule that admits hearsay evidence of this character from the necessity of the case.
We take occasion to say, that we regard the reasoning in Smith v. Shinn, 58 Texas, 1, as being in conflict with the rule here asserted, and in so far as it so conflicts, that case is overruled.
The defendants offered in evidence a certificate of James Gillett, Adjutant-General, filed in the office of the Comptroller of the State, stating, in effect, that Celinda C. Wallace had filed in his office a power of attorney and proof that she was the widow and heir of the William Wallace who was a member of Captain P. S. Wyatt’s company, and that bounty and donation certificates had been delivered to David Gage, attorney for the administrator of the estate of said Wallace; also proof that William Woolwine, brother of Celinda Wallace, was duly appointed administrator of the estate of William Wallace, in the county of Rusk. The last was objected to, because there was no power of attorney from the heirs shown, and the admistration was taken out nearly thirteen years after the death of William Wallace, which objections were sustained.
We find no law which authorized the Adjutant-General to give such a certificate as that offered in evidence. It was hearsay, and properly excluded.
It appears from the statement of facts, that Hudson located the lands in controversy; that he received the certificate from Lewis, the attorney of William Woolwine, administrator of the estate of William Wallace, and that William Woolwine was the brother of Celinda C. Wallace, the widow of the William Wallace who came from Virginia. "Under this state of facts, the evidence as to the administration was admissible to show an assertion of right or claim to the certificate, as a circumstance to establish the identity of the party in whose right the claim was made. Hickman v. Gillum, 66 Texas, 314.
In the case last cited the contest was over a tract of land granted to Maria Josefa Delgado. There were two persons of that name. The plaintiff in that case claimed under one and the defendant under the other. The main issue was as to which was the person to whom the grant was in fact made. Certain papers were in evidence which the trial court did not regard as evidence of title, but was admitted as evidence of assertion of claim of title and the exercise of acts of ownership. This court said in that case: “Whilst the fact that a party asserted that land belonged to her would be no evidence of title, yet it would be the best possible evidence that she claimed it. And when, as in this case, the grantee of land has a name which is borne by two persons, the fact that one of them has claimed the land continuously from the date of the grant, and exercised acts of ownership over it for a long series of years, and the other has done nothing of the sort, during the whole of the time, affords strong evidence that the former was the person intended tobe named in the grant.” If it be conceded that the administration was void, then it does not render the testimony inadmissible. Ho right was claimed under the administration, and whether valid or void it was equally effective to prove the fact that it was procured in the interest of Celinda C. Wallace as a step towards securing the certificate in question, and that the person claiming to be such administrator did in that right assert claim of right to the certificate. The evidence should have been admitted.
The judgments of the District Court and the Court of Civil Appeals are reversed, and this cause is remanded to the District Court for further proceeding in accordance with this opinion.
Reversed and remanded.
Delivered December 21, 1894.