Edwards v. Roark

Wheeler, J.

The certified copy of the plaintiff’s proposed evidence of title was not obnoxious to the objection on which it was excluded; that is, that it was the copy of a testimonio, and not of an original archive. It is true that the evidence of a possessory title, which preceded the action of Governor Salcedo was a copy or testimonio ; but the document which evidenced the action of the Governor, and the Commissioner appointed by him, appear to be the original, or protocol, and the whole is therefore an archive in the Land Office. It is no objection to the copy of a title in the Land Office, that a part of the title,—the concession, for example,—is *191a testimonio ; for when the final title was issued, that, as well as all other papers evidencing the incipient stages of the title, became an archive in the office from which the title emanated, and was properly transferred to the custody of the Commissioner of the General Land Office.

But, although the copy was admissible, it did not contain any evidence of a complete grant or title. There is no evidence of any action taken upon the report of the Commissioner appointed by the Governor to survey and appraise the land, of any confirmation of the title, or of any grant of the land in absolute property. The document, which the copy was offered to prove, is not, in itself, evidence of a grant or title to the land, and could only become competent evidence of title, in connexion with some evidence of a grant, either direct and positive, or presumptive ;^£t^^4¿«&si'eceived in aid of other proof of title. The v^mág¡¿BflK¿b^ÍMkConfirmation of title in 1810; and that me grantee and msirepresentatives were then in possession, a the uninterrupted possession until in the rear 1845, when trfe alleged tresspass was committed. If th^lLiLBiRi&EMjM-1 to prove such confirmation or grant, or pwsges^n contóraed for a length of time sufficient to raise the presumption of a grant, this evidence might have become material and essential to identify the locality and boundaries of the land. In this view it was admissible ; and had it not been excluded, for aught that appears, the plaintiff might have introduced such further evidence of title. We cannot say he was not prevented from doing so by the exclusion of this evidence, without which such-further evidence would have been unavailing. The exclusion of the evidence may have operated to Ms prejudice, and will therefore require a reversal of the judgment.

It is not material to inquire whether there was error in excluding the copy certified by the Political Chief of the Department of Bexar ; for the reason that it would prove nothing more than the Land Office copy; and of coure he will *192derive all the benefit from the latter, which he could derive from the copy of the same'document made by the Political Chief. Nor is it necessary to revise the other rulings of the Court reserved by the bill of exceptions, as those questions may not arise for decision upon another trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.