Houston East & West Texas Railway Co. v. Blagge

12 S.W. 616, 73 Tex. 24, 1889 Tex. LEXIS 1134

Opinion

Henry, Associate Justice.—

This was an action of trespass to try title. Plaintiffs’ chain of title was set out in their petition. One link in the chain is a deed from Stephen H. Everitt to Jonas Butler, charged in the petition to have been executed and delivered on March 1, 1842.

On the trial it was shown-that this deed had been destroyed. Parol evidence sufficient to establish its execution and contents was introduced.

The witnesses by whom this proof was made stated their belief to be that the last deed was dated in 1845. This evidence was objected to by defendant on the ground of variance between the proof and allegation.

The objection was overruled and the evidence admitted:

This ruling of the court.is assigned as error.

We do not think that in this case the date of the last deed was material, and it not being, the.evidence, was properly admitted. ■

The judgment is sufficiently supported by the evidence and is affirmed.

Affirmed.

Delivered February 12, 1889.