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actually made, and made by the same sur- | the east corner of survey 321 in name of veyor by whose testimony appellant wished Dangerfield, and No. 34 in name of J. M. to show that the survey was erroneous. Munoz." The two sets of field notes, and Johnson v. Archibald, 78 Tex. 96, 14 S. W. | the map from the land office, showing the 266. When the field notes in a survey call conflict that Hector's testimony would have for the corners and lines of surrounding sur- shown, were also admitted in evidence. The vers, and contain no inconsistent calls, it is motion for rehearing is overruled. not admissible to show by parol evidence that a different survey was made, for the purpose of controlling the calls in the patent. Anderson v. Stamps, 19 Tex. 460; Converse v. FRENCH V. GROESBECK et al. Langshaw, 81 Tex. 275, 16 S. W. 1031. (Court of Civil Appeals of Texas. May 30, Appellant did not file a plea of not guilty,

1894.) but filed a special plea admitting the correct REFUSAL OF CONTINUANCE-DISCRETION OF COURT ness of appellees' field notes, and under his -CERTIFIED COPY OF DEED-ADMISSIBILITY. plea it was not error to exclude the testimony 1. In trespass to try title, plaintiff offered

a certified copy of a deed under which she of the surveyor Hector, showing an error in

claimed, which was excluded because it was the calls in the survey. There was no evi not recorded in the same county where the dence offered to show that the survey was land lay. She then asked a continuance, alnot actually made, but the whole tenor of

leging surprise at the court's ruling, in order

to get evidence to prove that the land was in the testimony excluded was to show that a

that county. She further asked that, in case certain rock that is called for is not on the she was unable to make such proof, she be alline of an adjoining survey as set out in the

lowed to prove the execution of the deed by field notes. Had there been any pleading to

competent witnesses. Held that, as the appli

cation showed that she was not certain that sustain the evidence offered as to the survey. she could prove that the land was located in or making the west line at a certain locality, the county where the deed was recorded, or and that he called for the east line of survey

that she could prove its execution, it was prop

erly refused. 31 by mistake, when in deed and in truth he

2. The refusal of such an application for had not reached the said line, it might have a continuance, being within the discretion of been error to have excluded it, but appel

the court, would not be disturbed, unless a lant had sworn that the field notes of appel

| clear abuse of discretion were shown.

3. A certified copy of the record of a deed lees' survey were correct, and there was no which was recorded in another county than that allegation supporting his proof. None of the in which the land in suit lies is not admissible

under Rev. St. art. 2257, making certified assignments are meritorious. The judg

copies of deeds admissible in case the original ment is affirmed.

is lost.

4. Rev. St. art. 1301, provides that, at any On Rehearing.

time before the jury retires, the plaintiff may

take a nonsuit, but he shall not thereby preju(June 20, 1894.)

dice the right of an adverse party to be heard

on his claim for affirmative relief. Held, in "It has, at least ever since the decision in

en trespass to try title. where defendants asked the case of Rivers v. Foote, 11 Tex, 662, been, that their title be quieted, the court may hear we believe, the recognized rule of pleading and grant their plea, though plaintiff was nonand practice in actions of trespass to try

suited. title, that when the defendant pleads 'not

Appeal from district court, Mason county; guilty,' and also pleads specially, the effect

W. M. Allison, Judge. of the plea of 'not guilty' is merely to im

Trespass to try title by Sarah R. French pose on the plaintiff the necessity of estab

against P. H. Groesbeck and others. From lishing his title; and, as a consequence, the

| a judgment for defendants, plaintiff appeals. defendant is limited in his defense to his

Affirmed. special defenses, upon which by his pleas Ogden & Harwood, for appellant. A. W. he has notified the plaintiff he intends to Moursund and John T. Wolters, for appelrely.” Shields v. Hunt, 45 Tex. 425. Ap- lees. pellant's plea of “not guilty" did not remove the admission that appellees' field notes were NEILL, J. This is a suit in trespass to correct, as set out in the petition, and he is try title broight in the district court of Mabound by bis admissions. Were this propo son county by appellant against the appelsition incorrect, appellant could not have lees to recover 320 acres of land situated in been injured by the rejection of Hector's tes Mason county. The defendants answered by timony, as the same facts to which he would general demurrer, plea of not guilty, and have sworn were testified to by the commis- | plead in reconvention, setting out that they sioner of the general land office. McGaughey were the owners of the land, that plaintiff's says: "A certificate by County Surveyor claim was a cloud on their title, and asked Hector places the southwest or beginning judgment for the land and for the removal of corner of survey No. 8 about 700 varas north the cloud on their title to the same. The and about 400 varas east of the beginning | case was tried by the court without a jury, calls in field notes of said survey. He ex- and a judgment rendered for the defendants plains that a stone placed by the United upon their plea of reconvention, from which States government survey was mistaken for this appeal is prosecuted.

Conclusions of Fact.

any witnesses at hand by whose testimony The appellant is the sole heir and legatee

the facts averred herein can be established." of John C. French, deceased. The appellees,

This motion was overruled, to which ruling P. H., J. N., H. S., and Mollie W. Groesbeck,

plaintiff saved a bill of exceptions, which are the sole heirs and legatees of John D.

was signed by the court, with the explanation Groesbeck, deceased, and both appellant and

that evidence had already been introduced, appellees claim the land in controversy un

and other evidence was accessible, showing, der John D. Groesbeck as a common source,

at the time of filing the deed for record in and waive proof of title down to said Groes

Bexar county, none of the lands were situbeck. The appellant's claim of title was

ated in Bexar county or Bexar land district, through an instrument purporting to be a

but were situated in the then organized deed from John D. Groesbeck to John C.

counties of Mason, San Saba, and Llano. French, a copy of which from the county

Upon the court's overruling this application clerk's office of Bexar county was offered in

is based appellant's first assignment of error. evidence by appellant, and excluded for

Conceding, for the purpose of considering this reasons which will appear in our conclusions

assignment, that the copy of the deed was of law.

properly excluded, we do not think there was

any error in overruling the motion. Conclusions of Law.

It was not a statutory application entitling Both parties having announced ready for the plaintiff to a continuance as a matter of trial, the plaintiff offered in evidence a certi- right, but was such an application as is adfied copy of a deed from John D. Groesbeck dressed to the sound discretion of the court, to John C. French, an affidavit of the loss of and will not be revised unless a very clear the original having been duly filed as is re- abuse of such discretion be shown. Railquired by statute for the introduction of way Co. v. Hall, 83 Tex. 679, 19 S. W. 121; copies of instruments required or permitted Wiggins v. Fleishel, 50 Tex. 64; Railway Co. by law to be recorded in the office of the v. Hardin, 62 Tex. 369; Allyn v. Willis, 65 county clerk, and which have been recorded Tex. 70. The appellant should have been there, which purports to convey, among other prepared to prove her title by competent teslands, the premises in controversy, and to timony, and her surprise at a correct ruling have been duly acknowledged by the grantor of the court should furnish no ground for on the 18th day of July, 1856, and filed for continuing the cause. The application does registration on the 23d, and recorded on the not show by what facts or records in the land 26th day of April, 1859, in the office of the office she expects to prove that the land county clerk of Bexar county, Texas. The embraced in the deed, or any part of it, was defendants' counsel objected to its introduc- in Bexar county or land district at the time tion, for the reason it had not been recorded the deed, a copy of which was offered in eviin any county where the land, or any part dence, was filed for record in the county thereof, lay. Upon the objection being sus- clerk's office of Bexar county. In fact, the tained, the plaintiff asked and obtained leave application on its face shows that she did of the court to withdraw her announcement not know she could make such proof. Nor of ready, and prepared and presented to the does it appear, in the event she should fail court a motion for continuance, upon the to make such proof from the land office, ground that she was surprised by the ob- that she could have “proved the execution jection of defendants and the ruling of the of said deed by proper testimony of compecourt thereupon in excluding said copy, and tent witnesses," if the cause had been continwas not prepared with proof to meet the ob- ued to give her the “opportunity." After the jection; alleging in her motion “that she be- application for a continuance was overruled lieves a portion of the land embraced in the the plaintiff again offered in evidence the cerdeed was, at the date it was filed for record, tified copy of the deed referred to in our embraced within the true limits of Bexar consideration of the first assignment of error. county or land district; but that she is not The same objection to its admission was inprepared to make proof of such fact from terposed by defendant, which was sustained proper and indisputable source, to wit, the by the court as before; to which ruling of records and archives of the general land of- the court the plaintiff reserved a bill of exfice of Texas; that it is impossible for her ceptions, to which the court appended the exto procure said testimony in less than four planation that evidence was adduced showdays, as the place where the court is in ses- ing that the deed in question conveyed lands sion is about 40 miles from the nearest rail- situated in Mason, Llano, and San Saba road station accessible for the purpose of go- counties only. ing to procure said testimony; and, in the Appellant's second assignment complains event of such proof failing, she have an op- of the court's exclusion of the copy of the portunity to prove the execution of said deed. It is contended by appellant under deed by proper testimony of competent wit- this assignment that a deed, being an instrunesses; that she had no notice or intima- ment in writing permitted or required to be tion that such objection would be made to recorded in the office of the county clerk, said deed, or that such testimony would be after having been proved or acknowledged needed; that her counsel does not know of in the manner provided by law in force at

the time of its registration, when recorded in sence of evidence showing a superior title the office of a county clerk, is admissible in under the common source in appellant, this evidence without further proof of execution, was sufficient to entitle the appellees to reproper notice having been given of its filing, cover on their plea in reconvention; and, if and that a certified copy thereof from such it was essential they should introduce it in record is likewise admissible when the prop order to avail themselves of it, we would er affidavit of the loss of the original has presume, in the absence of proof to the conbeen filed. Article 2257, Rev. St., does not trary, that it was done by them. There is say recorded in the office of a clerk of the no merit in appellant's motion, and it is county court, but "in the office of the clerk overruled. of the county court." Under the laws in force when the deed in question was recorded, the clerks of the county courts of the

BROWN V. HARRIS et al. several counties of this state were the recorders for their respective counties, and it was

(Court of Civil Appeals of Texas. June 6, made the duty of each recorder to record

1894.) in the books provided for his office all deeds

NAKED TRUST-DEED BY TRUSTEE – Prima FACIE

-EFFECT. or other instruments of writing concerning

1. Certain land was patented to "Jacob any lands in his county which were proved

de Cordova, trustee of the German Emigration or acknowledged according to law, and de Company and J. J. Giddings, assignee of Fredlivered to him to be recorded in his office.

erick Stoppelberg." Held that, assuming that

Cordova appears, on the face of the patent, to Oldham & White, Dig. arts. 1700, 1706. The

have been trustee for both the German Emigraclerk was only authorized, under the law, tion Company and J. J. Giddings, he could to record in bis office deeds concerning lands not, prima facie, convey the interest of Gidin his county; and, as the record in his of

dings, in the absence of any evidence of au

thority from him. fice of a deed to lands situated in some other

2. The effect of such patent is to create county was neither authorized (permitted) simply a naked trust for the benefit of the nor required, a copy of it was not admissible beneficiary. in evidence under the statute. Cattle Co. v. Appeal from district court, Mason county; Chisholm, 71 Tex. 525, 9 S. W. 479; League W. M. Allison, Judge. v. Thorp, 3 Tex. Civ. App. 573, 22 S. W. | Action between J. N. Brown and Sidon 179, and 24 S. W. 685; Tomlinson v. League Harris and others. From the judgment, (Tex. Civ. App.) 25 S. W. 313. Therefore it | Brown appeals. Reversed. was properly excluded.

H. M. Holmes, for appellant. The appellees, by their plea in reconvention having pleaded matters entitling them to af

JAMES, C. J. The facts upon which the firmative relief, could not be prejudiced in

appeal is submitted are as follows: (1) The their right to be heard on their plea vy al tract of land in respect to which this action nonsuit on the part of appellant;, and it was

was brought was patented to "Jacob de Cornot error in the court to hear said plea, and

dova, trustee of the German Emigration grant the appellees the relief to which the

Company and J. J. Giddings, assignee of evidence showed them entitled. Rev. St. art.

Frederick Stoppelberg;” the patent calling 1301. There is no error assigned requiring a

for 320 acres (describing the same by field reversal of the judgment, and it is affirmed.

notes) in Mason county, and reciting that it On Rehearing

was, by virtue of certificate No. 251, issued

to said Stoppelberg by the commissioner of (June 27, 1894.)

Fisher & Miller's colony, June 6, 1850, and It is contended in appellant's motion that transferred to John L. Darragh January 9, this court erred in not holding that the court 1854, and by said Darragh transferred to below erred in refusing to allow her to Jacob de Cordova, trustee of the German take a nonsuit, because it appears that ap- | Emigration Company and J. J. Giddings, pellees were in possession of the land, and February 20, 1855. The patent was dated that it further appears that they introduced December 2, 1880. The patent concludes no evidence to support their plea in reconven with the words, whereby relinquishing to tion. After appellees had pleaded in recon them, the said Jacob de Cordova, trustee of vention, they had the right to have the mat the German Emigration Company and J. J. ters put in issue by their pleadings deter Giddings, assignees, and their heirs and asmined, and have their title to the premises signs," etc. (2) A deed dated April 3, 1861, quieted against the claim of appellant, not executed by "Jacob de Cordova, acting as withstanding they were in possession of the trustee of the German Emigration Company property, and could not be deprived of such and J. J. Giddings," for the consideration of right by appellant's taking a nonsuit. It one dollar, to Henry F. Fisher, purporting to does not appear from the statement of facts convey said tract of 320 acres. (3) The folby whom the evidence was introduced, but lowing agreement is stated in the record: it does appear therefrom that both parties "It is agreed that, if the patent and deed adclaimed the land in controversy through John duced in evidence vests title prima facie in D. Groesbeck, as a common source, and that Henry F. Fisher in and to said survey, then the appellees are his sole heirs. In the ab. | the judgment of the district court shall be in

all things affirmed; but, if the same should was such authority. The judgment will be be held by the appellate court insufficient to reversed, and reformed as agreed upon, in vest in said Henry F. Fisher prima facie title this event, by the parties. to the whole thereof, then the judgment shall be reformed so that appellees, Sidon Harris and Carrie Chew, shall recover an undivided 14 of said land, and that G. W. Bird have

COLES V. THOMPSON. judgment over against J. N. Brown for (Court of Civil Appeals of Texas. June 6. eighty dollars, with legal interest thereon

1894.) from May 12, 1883, and costs."

LIBEL-PRIVILEGED COMMUNICATION PLEADING It is evident that our revision of the judg

AXD PROOF EXEMPLARY DAMAGES – SPECIAL

JUDGE-DISQUALIFICATION. ment is confined by said agreement to the

1. Where the district judge enters his disprima facie effect of said patent and deed.

qualification, and a special judge, agreed upon Assuming that Jacob de Cordova appears, by the parties, qualifies, and makes certain orupon the face of the patent to have been trus- ders, and afterwards the disqualified judge is tee for both the German Emigration Com

regularly succeeded by another judge, the lat.

ter has power to try the cause, since the powpany and J. J. Giddings, we still are without

ers of the special judge end when the occasion any means, from the instrument itself, of de- for his existence ceases.

2. Where a libelous letter stated that the termining the nature and terms of his trust.

addressee might read it to all he wished, the He would thus appear to have been merely writer cannot claim that the letter was a privthe depository of the legal title, which consti- ileged communication. tutes simply a dry or naked trust for the 3. A letter stating that an established min

ister of the gospel is devoid of moral princibenefit of those named in the patent. Moore

ples is actionable where actual damages result. v. City of Waco, 85 Tex. 211, 20 S. W. 61. A 4. In an action for libel, where the comperson thus holding title for others has no plaint avers that the damaging effects of the

libel are existing and continuing, the fact that power to convey the property, unless by con

evidence was admitted, without objection, of sent or direction of the beneficiary. 2 Perry,

damages accruing after the suit was begun, is Trusts, $ 764. If he should, without such

not ground for reversal. consent or authority, execute a deed to a

5. In an action for libel, the falsehood of third person, while the legal title would pass

alleged defamatory matter is presumed, and

the onus of proving it true lies on the defendto his grantee, it would not convey the title ant. of the beneficiaries; and the grantee would 6. In an action for libel, where the actual hold as trustee for them, as did his grantor.

damages are assessed at $60, exemplary dam

ages of $140 are not so disproportionate as to 1 Warv. Vend. p. 86. Upon this state of the

indicate passion or prejudice. case, we are of opinion that the equitable

Appeal from district court, Bee county; S. title to one-half of the survey remained in J.

F. Grimes, Judge. J. Giddings.

Action by M. Thompson against S. M. Coles Appellant may be correct in the position

for libel. taken by him, that the proper construction of

From a judgment for plaintiff, de

fendant appeals. Affirmed. the patent, and the transfer recited in it, would be to regard Cordova as trustee only

G. R. Scott & Bro. and Dugat & Mims, for for the German Emigration Company, in appellant. which case his deed could not possibly be held to affect the interest of Giddings, but

JAMES, C. J. Appellee brought this suit in we do not deem it necessary to make this

Karnes county to recover damages of appelruling. If the other construction is placed

lant for libel. Plaintiff was the pastor of a on the patent, which would make him trus- colored Congregational church at Helena. tee for both, the case, as presented to us, does

and he had charge of the Congregational not show power in him to deprive Giddings

church at Goliad, where he preached once a of his interest by the deed to Fisher. We

month. Jack Lott was a member of the are not unmindful of the fact that the con- Goliad church, but contributed to said passent or direction by Giddings to authorize the tor's salary at the Helena church. It seems deed to Fisher may have been by parol (Rog- that a scandal had occurred and become the ers v. Tyley (Ill. Sup.) 32 N. E. 393), and subject of investigation in the colored Conthat, after the great lapse of time that has gregational church at Corpus Christi, involvintervened, very slight circumstances would ing one Strong in a charge of seduction and suffice to establish such authority. But noth- murder. The defendant an intimate

ing whatever on this subject appears, and, if friend of Strong, who was pastor of the

there were anything of this nature outside of the patent and deed, the agreement of the piirties, upon which the issue is submitted here, we think, would exclude us from giving it any effect. At the time of the trial the deed to Fisher was over 30 years of age, but there is nothing in the deed by which it purports to have been executed by direction or authority of Giddings, and we therefore cannot be warranted in presuming that there

church at Corpus Christi, and supported him in his trial. The defendant, Coles, acted as moderator at the trial, and afterwards wrote to Jack Lott a lengthy letter, giving a de. tailed account of what developed there against Strong, which letter we may say was, and was intended to be, argument that had a decided tendency to convince one that Strong was guilty of said offenses, and that Strong's statements and explanations upon that trial

were untruthful. The letter concludes with finding by the court that defendant was pasthe following paragraph: "Wow, these are tor of the church in Nueces county, when the some of the main facts. You can judge for evidence showed him to have been only modyourself. I understand your pastor has been erator on one occasion, and urges that this misrepresenting our church. He made him erroneous finding was calculated to influence self ridiculous here. Put him and Strong in the court in the matter of punitory damages, a sack together, which would tumble out because of the standing of defendant. This first? Both are void of judgment, reason, or assignment affects only the exemplary dammoral principles. You may read this letter ages allowed, and, if these are excessive on to all you wish." The letter was read by and the facts as they are, we can remedy it by reto others to a considerable extent, in the forming the judgment. neighborhood of plaintiff's churches; and i The district judge concluded that the letter plaintiff, being the person referred to by said was libelous as to plaintiff, and adjudged him paragraph, sues for damages by reason of its $60 actual, and $440 exemplary, damages. derogatory references to him.

Defamatory words, applied to an established The record shows that the district judge minister of the gospel, calculated to directly presiding in Bee county, when the cause was affect his professional standing and occuparemoved there, entered his disqualification, tion, would seem, according to the authoriand the Honorable G. W. L. Fly was regular ties, to be libelous per se. But it is not necly agreed on by the parties as special judge, essary for us in this case to so hold. Cooley, and qualified as such, and had, previous to Torts, p. 196. The paragraph of the letter the trial term, made orders in the cause. referring to plaintiff may not necessarily be At this term the disqualified judge had been construed as charging him with being as regularly succeeded in office by another judge, capable of committing the crime of seduction before whom the trial was had. The defend and murder as Strong, but similarity of the ant objected to the trial taking place before persons was clearly and directly charged to the district judge, on the ground, as assigned, be in respect to the want of judgment, reathat the appointment of the special judge son, or moral principles. To say of a person was in force, never having been revoked, al- of plaintiff's calling that he is devoid of moral tered, or changed by the parties to the cause. principles is defamatory. The words were We are referred to no authorities, and we undoubtedly actionable if actual damages, find none, of the court in this state, relative as a proximate result of their publication, reto the duration of the special judge's powers sulted to plaintiff. The evidence shows that when the judge by reason of whose disquali pecuniary loss was sustained by him in the fication the special judge came to be ap matter of support and contributions to him pointed has gone out of office, and another from members of his denomination, from this elected, who is not disqualified. We are of cause, between the time it was published and opinion that, on principle, the powers of a the date of the trial, in an amount at least special judge terminate when the occasion for equal to what was allowed as actual damhis existence has ceased. There can be no ages. Odgers, Sland. & L. (Bigelow's Ed.) substantial reason why the district judge | p. 308. should not proceed to hear and determine any Appellant claims it was error for the court cause on the docket of his court where no to consider any items of damages that occause exists disqualifying him from so doing. curred after the suit was filed, citing Zapp If the special judge had proceeded and tried v. Michaelis, 58 Tex. 270. In that case the this cause, there is authority for holding, un pleadings of the plaintiff expressly excluded der certain circumstances, that his judgment any claim for damage except what had acwould not be reversed on appeal; and it crued at the time his petition was filed. In seems well established that his judgment | this case plaintiff pleads the effects of the would not be held void in any case on collat publication as existing and continuing. Properal attack. In such cases the act of the er pleading may have required more specific special judge has been given effect as done allegations as to the special damages suscolore officii. The case before us, however, tained, but no exceptions were made to the was tried by the regular judge of the court petition. Evidence of damages accruing aftin which the cause was pending, who was er the suit was filed was introduced without free from any disqualification, and our opin objection, and was properly considered. The ion is that it was within his constitutional judgment for actual damages will be suspower to proceed and try the cause.

tained. The second assignment of error insists that There was no attempt on the part of the the letter upon which the action is founded defendant to prove the truth of the imputawas a privileged communication. The fea. | tions contained in the letter. The onus of provture of the letter prompting the reading of it | ing that the words are true lies on the defendto all the addressee desired would remove it ant. The falsehood of the defamatory words from any privilege that may have pertained is presumed in plaintiff's favor, and he need to it, if the suggestion was observed and the give no evidence to show they are false. contents of the letter disseminated, which the Odgers, Sland. & L. p. 169. The court doubtevidence shows was done.

less concluded they were malicious, because The fourth assignment complains of the l of their falsity, and because defendant, in the

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