Brown v. Roberts , 75 Tex. 103 ( 1889 )

ACKER, Presiding Judge.

Appellant brought this suit in October, 1887, in trespass to try title to an undivided seventeen hundred and ninety-six acres ofland in the Moses F. Roberts survey of one league.

On the 7th day of March, 1837, Moses F. Roberts executed an instrument empowering W. W. Gant to demand and receive title from the government for all land he was entitled to receive as his headlight, and to take possession of the title and land so received, and giving to Gant, with full right of disposition as his own, 1796 acres of the land; Gant to pay all expenses thereon.

W. W. Gant died early in 1840, leaving no children, but leaving a widow, Harriet E., to whom he bequeathed all of his property by will duly probated the latter part of 1840. Appellant married the widow of Gant in 1841, and she died in 1862, leaving no descendants, and bequeathed by duly probated will all of her estate to the appellant.

Appellant testified that he had held the power of attorney from Roberts to Gant since 1841; that he found it among Gant's papers when he married Mrs. Gant, and that he claimed a locative interest in the land under that instrument.

The Moses F. Roberts headright certificate for a league and a labor was issued on the 1st day of February, 1838, and the duplicate certificate was issued to Roberts on the 6th day of September, 1855. On the same day a certificate for unlocated balance of one league was issued to Roberts, by virtue of which the land in controversy was located in 1858 by H. W. Merrell, to whom the patent was issued as assignee in 1860.

In 1882 appellees, as heirs of their mother, who died in 1839, and who-was the wife of Moses F. Roberts from 1832 to her death, recovered judgment against the patentee, H. W. Merrell, for one-half of the league, which was partitioned by giving them the east half and Merrell the -west half of' the league. Moses F. Roberts died in 1886. Mei-rell was not a party to-this suit. The trial was without a jury, and judgment rendered that, plaintiff take nothing by his suit and pay costs.

Under numerous assignments of error it is contended that the court erred in rendering judgment for defendants, but we do not think so.

There Avas no evidence adduced upon the trial tending to show that Gant ever obtained the certificate, caused any part of it to be located, or did anything toAvard carrying out his contract Avitli Roberts, upon which his right to the 1796 acres of land depended. Plaintiff held the instrument in his possession for forty-six years, and nearly thirty years after the certificate Avas located by Merrell, without asserting any right under it.

We think the plaintiff failed to make a case that entitled him to recover,, and that the court did not err in rendering judgment for defendants. ,

Several of the assignments of error relate to rulings of the court on-objections made by plaintiff to evidence offered by defendants. What Ave have said disposes of these assignments, as it devolved on plaintiff to show title in himself, and until he made a prima facie case defendants Avere. not required to offer any evidence at all.

We are of opinion that the judgment of the court beloAV is correct and. should be affirmed.

Affirmed.

Adopted November 12, 1889.