The case has been carefully considered, but as it presents no new questions for determination, and the result reached is believed to be correct, it is not deemed necessary to discuss at any length the different grounds of error that have been assigned.
The land located and surveyed by virtue of the certificate was sufficiently identified as the same land embraced in the patent that was offered in evidence. The doubt (if it could be said to be one) .arose from the failure of the proper authorities in issuing the patent to state by way of recital, as should always be done, the number, ■date and class of the certificate on which the survey and patent is based.
A proper construction of the laws, directing the issuance of patents to lands surveyed by virtue of a land certificate, is that the .authority (that is, the certificate, etc.) by virtue of which the patent exists should be recited in it. Hart. Dig., art. 1853 et seq.; arts. 1951, 2044, 2186 et passim; Pasch. Dig., arts. 4287, 4289 et passin, 3952-3963 et seq.
*524Independent of the requirements of the statute in this respect, the patent, which is the evidence of the final severance of the land from the public domain, and of its grant by the sovereign power to a private individual, should, in accordance with the general principles of law applicable to all grants, state the consideration on which it is based, and fully identify the authority on which it rests,, and by virtue of which it is made.
Under previous decisions of this court, the deed from Abell to Roy was sufficiently proved to admit of its introduction in evidence as an ancient instrument. Watrous v. McGrew, 16 Tex., 507; Mapes v. Leal, 27 Tex., 345; Stroud v. Springfield, 28 Tex., 649; Williams v. Conger, 49 Tex., 582; Johnson v. Timmons, 50 Tex., 521; Glasscock v. Hughes, 55 Tex., 461; Gainer v. Cotton, 49 Tex., 117-119.
The charge of the court as to where the burden of proof should rest was not, it is true, technically correct in all respects. It must be considered, however, with reference to the state of facts to which the court very properly addressed the charge. When so considered, it cannot be said to be erroneous, or to have misled the jury. When the proper affidavit is filed, as was done in this case, attacking the deed offered in evidence as a forgery, such a deed cannot be receded in evidence without the usual proof of its execution; but when such proper proof is made, as was done in this case, it is not error to allow the deed to go to the jury as prima facie a genuine instrument. The impeaching affidavit has served its purpose. It has compelled the party claiming under the deed to prove its execution in accordance with the rules of evidence, and thus remove the suspicion cast on it by the affidavit of forgery. It throws upon the shoulders of the party offering the deed the burden of proving its. execution in accordance with the rules of common law. Jordan v. Robson, 27 Tex., 613; Williams v. Conger, 49 Tex., 582; Muckleroy v. Bethany, 27 Tex., 552; Willis v. Lewis, 28 Tex., 186, 187; Powell v. Haley, 28 Tex., 52; Newby v. Haltaman, 43 Tex., 314.
If the party impeaching the deed desires to do so, he is at liberty to proceed to sustain by any lawful testimony his plea of non esi factum. If he introduces no proof whatever (the affidavit not being evidence), and the opposing party proves the making of the deed in accordance with some one of the modes prescribed by the common law, the genuineness of the deed is established. The jury, in the absence of all proof sustaining the plea of non est factum, could not find otherwise.
The charge, then, must be read with reference to the exact case
*525'being considered by the court. When it was given the evidence had all ceased; no more proof could be received. The appellee had been compelled, under the operation of the plea of non est factum., to introduce affirmative proof of the execution of his deed. The court required this of him. The appellants saw fit to introduce no evidence whatever in support of their plea of non est factum. Under the circumstances of the case, as thus presented, the charge was not erroneous, nor was it, as the appellants had introduced no proof in support of their plea, calculated in any manner to mislead the jury. Yonge v. Guilbeau, 3 Wall., 636.
Besides, as we have seen, the charge was certainly not inapplicable to the facts of the case as disclosed by the evidence, and the appellants, if dissatisfied with it as not sufficiently accurate, should have asked an instruction containing their views of the law. This they did not see fit to do.
The points raised as to the nature and character of the claim of F. Hiebling to the land in suit are, for many reasons, not applicable to this case. The appellants showed no claim or title whatever to the locus in quo. Shields v. Hunt, 45 Tex., 428; Johnson v. Timmons, 50 Tex., 537; Fitch v. Boyer, 51 Tex., 348.
The motion of appellants, however, to retax the costs, should have been granted. Under the statute the court has no authority to tax the attorney fees of one defendant against another. The bill of costs will in this respect be retaxed under the direction of the district court. R. S., art. 1212, p. 196. The judgment is affirmed, with directions, however, as above indicated, as to the re-taxation óf the costs.
Aeeiemed.
[Opinion delivered June 1. 1883.]