As I view this case, the crucial point in it is the transfer of the original certificate from Gibson to Parry. I think this court correctly held that the statement of Parry that he owned the original certificate was a conclusion. If so, then an important link in appellant's chain of title was broken and appellee failed in his case. Aside from this conclusion, the testimony was not sufficient to warrant a judgment for appellee.
I recognize the rule as settled in this state that the transfer of a certificate from the original grantee before its location may be shown by circumstances — and assuredly is this true after a long lapse of time and after the death of the witnesses. In this case, however, Parry, to whom the certificate was traced, is still living. He could state the facts with reference to the certificate and his connection with it, the source of his possession and the circumstances connected therewith. Under this condition, I do not believe his conclusion should be accepted as a fact. Gibson was dead; the record shows Parry did not know him in his lifetime. Circumstances may be resorted to for the purpose of showing a transfer out of Gibson. Parry being alive, I do not think subsequent dealings should be looked to alone as circumstances to show title in him. Apparently there is better testimony accessible, and, when such is shown, I do not think the weaker should be resorted to. Circumstances doubtless may be looked to ultimately to ascertain whether the title to the certificate passed out of Gibson.
The original opinion filed in this case is undoubtedly sound in the conclusion announced that the affidavits on file in the Land Office, made to procure the issuance of the duplicate, were not admissible to prove ownership in Albert and Parry, or of the truth of the facts therein stated; but this court has reached the conclusion that they are admissible for the purpose of the identity of the duplicate and original aid the duplicate of the one by virtue of which this land was located (Jones v. Reus, 5 Tex. Civ. App. 628, 24 S.W. 674), and for the more potent reason that, under the law as it existed at the time the duplicate was issued, it could issue direct to the person who claimed the original. The law now is that the duplicate shall issue in the name of the original grantee, whoever may be the claimant. The issuance of the duplicate to Gibson by the Land Commissioner, in the absence of any fact showing the grounds or why issued, would make a prima facie showing that Gibson at that time was the claimant and procured its issuance. If the evidence of the certified copies from the Land Office are true, manifestly he did not obtain its issuance. They show he did not apply for the duplicate or obtain its issuance. While the law gives the true owner of the duplicate all the rights secured thereby, even though the party securing its issuance had no right to do so (Seibert v. Richardson,5 Tex. Civ. App. 504, 23 S.W. 899), it ought not give the named grantee therein the benefit of the presumption when the facts are at hand to rebut the presumption. This would be putting the bona fide vendee of the claimant at a disadvantage in the contest over the then ownership of the duplicate, which it occurs to us is unjust. Baldwin v. Roberts,13 Tex. Civ. App. 563, 36 S.W. 789, on page 792, par. 3, col. 1.
The appellant in this case objects to the introduction of these proceedings in which their now claimed right took its life, without which the duplicate would have no existence, and hence there would have been nothing over which to contend. For over 30 years this claim has lain in the Land Office unchallenged by appellants — a notorious assertion of ownership. The case of Crosby v. Ardoin, 145 S.W. 709, cited by appellant and quoted in the opinion of this court, says: "If the validity and regularity of the issuance of the duplicate was an issue, then the affidavit, advertisement, and certificate would be properly admissible in evidence to show that the statutory prerequisites had been complied with." That the grounds stated for the admission of such papers are not the only ones is shown by the cases above cited. It is admissible to show any fact properly provable by such record. It will be noted in examining the law that the change in the law with reference to whom the duplicate should issue was made shortly after the issue of the duplicate in this case. To those acquainted with the history and administration of the Land Office, the issuance of the duplicate in the name of Gibson will not possess great probative force. The issuance of the duplicate was almost contemporaneous with the amendment of the law, and it is significant of a practice which afterwards became the law.
The bill of sale from Albert to Daugherty transferring the duplicate this court held admissible on account of its age. I think it also admissible because at the time it was recorded it was a chattel real. It had been located, the land surveyed, and the field notes returned to the Land Office at the time of its registration. When it was recorded, it was an evidence of an interest in the land. I think, also, the recitals to the effect that Albert had purchased the land were admissible, not for the purpose of proving such fact was true, but as evidencing the claim of ownership while in possession of the certificate, and by what right it was held Such I understand to be in effect the holdings of Lochridge v. Corbett, 31 Tex. Civ. App. 676, 73 S.W. 97; Davidson v. Wallingford,88 Tex. 619, 32 S.W. 1030; Herndon v. *Page 334 Davenport, 75 Tex. 462, 12 S.W. 1111; McDow v. Rabb, 56 Tex. 158; Bounds v. Little, 75 Tex. 316, 12 S.W. 1109; Fisher v. Ullman,3 Tex. Civ. App. 322, 22 S.W. 523; Mooring v. McBride, 62 Tex. 312; Wells v. Burts, 3 Tex. Civ. App. 430, 22 S.W. 421. I am also now of the opinion that the evidence of Parry, "that I sold certificate No. 16 to Stephen Albert in due course of trade and received from him the value thereof at the time and delivered same to him at my place of business," was admissible and was not a mere conclusion, but what purports to be a fact. Lochridge v. Corbett, supra, touches the instant case at two or three vital points, and I regard it as being in many of its features analogous to this.
I agree to a reversal of this case for the reasons first stated and without any purpose of trenching upon the well-recognized rule that the judgment of the trial court should not be disturbed, if there is testimony upon which it can be sustained, but believing, as I do, Parry's statement of his ownership was an opinion and not admissible, and the link in the chain of title thereby destroyed, as I view the case, there was nothing else to do but reverse.