On Motion for Rehearing. The motion for rehearing is overruled, except to grant the request to pass upon the cross-assignments of error.
The witness Von Rosenberg swore to the acts of Dr. M. A. Taylor in connection with his location of the certificate, and stated that he claimed it. Even if the statement that Taylor claimed the certificate which he had in his possession and which he located upon the land was not admissible, we fail to see how it could have possibly injured appellee. If the acts of ownership in connection with the certificate did not show a claim to it, *Page 1015 no language would. The testimony of Von Rosenberg was permissible.
A deed or other instrument may be shown to have existed by circumstantial evidence, and testimony not authorized by statute may be used in proving up the lost instrument. Crain v. Huntington, 81 Tex. 614,17 S.W. 243. In the cited case the claim of the party to the land is given as a circumstance showing the existence of a deed. The circumstances in that case are no stronger in proving up a lost deed than the circumstances in this case.
The letter of Johns Spence to Baines Chrisman was properly admitted in evidence as tending to show a transfer of the certificate, and its destruction by fire. The evidence showed that the communication was sent by the parties to whom it was written to H. M. Fore. The cross-assignments are not sustained. Guffey v. Hooks, 47 Tex. Civ. App. 560,106 S.W. 690.