The judgment of the District Court is not fairly before us for review for errors relating to the statutes of limitations.
The charges given and refused are as follows:
"You are instructed, that a land certificate, before its location, is personal property, and title thereto will pass by verbal sale. The Julian Diaz land certificate not having been then located, was personal property, and the subject of a verbal sale. Therefore, if you believe from the testimony *Page 637 that Enoch Jones sold said land certificate to I.A. and George W. Paschal, then you will find for the defendants. But if you believe from the evidence that Enoch Jones did not sell said land certificate, then you will find for the plaintiffs Olive Ann Washington, Flora K. Adams, Charlotte J. Hewitt, and Ellen J. Ryan an undivided interest of 126 acres of the land in controversy.
"You are instructed to find for defendants as against Charlotte T. Jones and E.G. Jones, for the reason that their title, if any they had, is barred by limitation.
"You are exclusive judges of the credibility of the witnesses and the weight to be given to their testimony.
"W.W. KING, Judge.
"You are further charged, that the certified copy of the oath of George W. Paschal, Jr., as filed in the General Land Office, can be considered by you as evidence only in reference to the identity of the certificate upon which the land in controversy was located, and can not be considered by you as evidence of the title to or ownership of the lands in controversy, or the certificate whereby the same was located and patented.
"If you find for plaintiffs any part of the land in controversy, then you are instructed to also find in their favor rent at the rate of $1 per acre per annum since March 19, 1884, for every acre to which plaintiffs may be entitled."
This additional charge was evidently given, although the record does not show it as signed by the judge.
Charge asked by plaintiff and refused:
"You are further charged, that the papers introduced show the title to the property to be in the plaintiffs, and you will find for the plaintiffs, unless you believe from the evidence that they have parted with their title, or that some of them can not recover by reason of the statute of limitation, as heretofore charged.
"Refused.
"W.W. KING, Judge."
We have quoted these in full for two purposes: first, to show that the charge given by the court in respect to the statutes of limitations was satisfactory to appellants when the cause was submitted to the jury; and second, to demonstrate that the jury must have based their verdict on the finding that the facts and circumstances showed the certificate had been transferred from Enoch Jones to I.A. and G.W. Paschal. If they had not arrived at this conclusion, they would necessarily, under the charge, have found title in plaintiffs to some of the land.
It was for these reasons that we did not deem it necessary in our former opinion to treat of errors, if any, relating to the question of limitations. *Page 638
It may be conceded that the land was not surveyed in 1856, yet the act of filing of the application for a survey of land by virtue of the certificate, with the other evidence of circumstances in the record, are deemed sufficient to support the findings of the jury. But in the absence of other proof than the agreement in the record, it would be assumed that the land was surveyed in 1856. The agreement of counsel, that on October 30, 1856, "I.A. Paschal filed with the surveyor of Bexar County an application for a survey of the land in controversy, by virtue of certificate number 66, issued to Julian Diaz, and being survey 133 1/2 in Bexar County, Texas," would lead to the inference that the certificate was located and a survey made of the land at that time. The judgment against the surveyor of Bexar County in 1873, whereby he was required to make a survey "upon the land which had been filed upon by I.A. Paschal on the 30th day of October, 1856, upon certificate number 66, issued to Julian Diaz, being survey number 133 1/2, situated on the waters of Rosillo Creek, in Bexar County," shows the survey to have been in existence, and the necessary inference is that some further survey was necessary to obtain the patent.
The other grounds stated in the motion for rehearing are sufficiently covered by what is stated in our former opinion. The motion is overruled.
Motion overruled.
Application for writ of error to Supreme Court refused.