Smithwick v. Andrews

24 Tex. 488

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Bell, J.

The court below did not err in sustaining the objection to the admissibility in evidence, of the certificate of the commissioner of the General Land Office, that there was on file in that office, a transfer of the bounty warrant, Ho. 1070, concerning which this suit originated. That was not a fact which the commissioner of the land office could certify, in the manner exhibited by the certificate offered in evidence in this cause. Whenever the commissioner of the land office certifies that a writing is a true copy of an original in his office, then such writing is admissible in evidence in the courts of the state, because of the commissioner’s certificate, and because it is a part of his official duties to give such copies of instruments. But it is no part of the official duties of the commissioner of the land office to certify that there is in his office a deed from one person to another. Hor can the fact, that a land certificate has been transferred by one person to another, or that land has been conveyed by one person to another, be proved by the mere certificate of any person, or officer.

But we are of opinion, that there was error in the charge given by the judge who presided below, to the jury, and also that there was error in refusing to give to the jury the third instruction asked by the counsel for the defendant. In the con-eluding part of his charge, the judge told the jury that unless they believed from the evidence, that the defendant had shown that no consideration passed to him for the land certificate in question, they would find for the plaintiff. This was narrowing the controversy down to this single point; whereas, other questions were fairly made by the pleadings and evidence. One of those questions was upon the statute of limitations, and the third instruction asked by the counsel for the defendant, Was upon that point, and was just such an instruction as ought to have been given to the jury. The statute of limitations was pleaded, and a portion of the plaintiff’s petition was offered in evidence, in support of the plea; and it was for the jury to say, whether or not the admissions or allegations of that portion of the petition which was offered in evidence by the defendant, were full enough to sustain the plea of the statute. For these errors the judgment of the court below must be reversed and the cause remanded; and it is ordered accordingly.

Reversed and remanded,