OF THE Supreme Court of the United States AT OCTOBER TERM, 1894. [Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.] 3] JOSEPH L. WHITE, Plff. in Err., ข. MARTHA ANN VAN HORN ET AL. (See S. C. Reporter's ed. 3-20.) Deed, when evidence—explanatory evidenceform of speech-requests to charge jury-interest, when recoverable-forgery. 1 Under the issue of forgery of a deed, another deed is admissible evidence to show the manner in which the grantor signed his name and the value be put on similar land. 2. Where testimony as to declarations of a person is admitted without objection, evidence to throw light upon and explain them is admissible. 3. That a witness prefixes his statement with the words "I should say" is no objection, when it is evident that they were not the expression of a conjecture, but simply a form of speech. 4. A request to charge was rightly refused, which requested the court to disregard the proofs and to instruct a verdict for defendant, upon a contested question of fact. 5. A request to charge was correctly refused, where the charge of the court, as actually given to the jury, furnished all that the party requesting was entitled to on the point. 6. A request to the court to charge the jury upon a purely hypothetical statement of facts, which was calculated to confuse and was fully covered by the charge already given, was correctly re fused. 7. Under the Texas statute when the defendant in ejectment is liable for the use and occupation of the land from the day of his purchase, he is entitled as against his warrantors to interest on the price paid by him from that day. 8. Under the Texas statute, one falsely personating another and signing his own name, intending thereby to counterfeit the signature of the other, and by reason of the fact that the names are idem sonans to produce the impression that the name signed is that of the other, is guilty of Submitted April 5, 1895. Decided June 3, 1895. ERROR to the Circuit Court of the United States for the Northern District of Texas, to review a judgment in favor of the plaintiffs, Martha Ann Van Horn et al., against Joseph L. White, defendant, in an action of ejectment for the recovery of a tract of land and for a certain sum as rent, and also in favor of the defendant for a certain sum as an allowance for improvements, and also against the warrantors of title to defendant, for a certain sum. Affirmed except as to certain issues, and remanded for a new trial as to them. [4 *Statement by Mr. Justice White: On the 2d of October, 1889, widow Martha Ann Van Horn, Elizabeth Evans, and her husband, David B. Evans, all three citizens of the state of Missouri, and Mary Ann Boling, and her husband, W. W. Boling, citizens of the state of Kentucky, brought an action against Joseph L. White, a citizen of Hill county, state of Texas. The action was one of ejectment to recover a certain tract of land situated in Hill county. The plaintiffs claimed to be the owners of an undivided third each of the land for which they sued. The defendant excepted to the petition upon the ground that it set out no cause of action, and then filed a general denial. He next pleaded limitations, under the law of Texas, of 1, 3, and 5 years; he averred his purchase and possession of the property in good faith, and alleged that he had put improvements thereon worth $1125, for the value of which improvements he prayed judgment in the event of his eviction. In addition, he averred that he and George G. White, on the 20th day of May, 1882, purchased the property in controversy under a warranty deed from W. R. Baker for $1280 cash, and their note, due on the first day of December, 1882, for $2460, bearing ten per cent interest from date until paid; that they paid this note before maturity, with interest amounting to the sum of $2570; that one half of the total sum of the purchase money, or $1900, was paid by him, and that Baker, as his warrantor, was liable, in the event of his eviction, to refund the same, with eight per cent interest from the date of the respective payments. He further alleged that on the 6th day of October, 1883, he bought | whole amount of the land claimed and $350 from George G. White, for $3789, the undi- rent. There was also a verdict in favor of vided half which had been acquired by the the defendant for $750, as an allowance for latter as above stated, and that George G. improvements, and against the estate of Baker, White also warranted the title, and would under the calls in warranty, for $3690, with therefore be obliged to repay him, if the plain-interest at eight per cent from October 2, tiffs recovered, the amount of the purchase price, with interest. The prayer was that Baker and White be called in warranty to defend the suit, and that if it was decided that the plaintiffs were the rightful owners of the property, there might be a judgment over against Baker for the amount of the price paid him, with interest at the rate of eight per cent from the dates of the payments, and a like judgment against White, with interest from the 6th of October, 1883. 1887, and against George W. White for the sum of $3789, with interest from October 6, 1883, at eight per cent. After an ineffectual effort to obtain a new trial, the defendant, Joseph L. White, brought the case by error here, making as parties, defendants in error, the original plaintiffs, the executors of Baker, and George G. White. The undisputed facts were as follows: The plaintiffs are the sole legal heirs of James Harvey Chism, who served in the army of Texas during her war with Mexico. In reward for his services there were two land certificates issued to him in the name of "J. H. Chism." The first, known as "a bounty certificate,' numbered 4298, was certified on the 15th day of September, 1838, and covered 1280 acres of land." The other was "a headright certificate," issued by the Board of Land Commissioners of Harrisburg county, in the following form: "The Republic of Texas, Class 2. "This is to certify that J. H. Chism has appeared before us, the Board of Land Commissioners for the county aforesaid, and proved according to law that he arrived in this Republic subsequent to the declaration of independence and previous to August, 1836, and that he is a single man, and produced an honorable discharge, is entitled to one third of a league of land to be surveyed after the 1st day of August, 1838. "Given under our hands, at Houston, this 1st day of November, 1838. 5] *Baker, in response to the call in warranty, filed a plea to the jurisdiction of the court, on the ground that he was not, at the time of the service of the petition, an inhabitant of the northern district of Texas. Subsequently, the death of Baker being suggested, his executors were made parties defendant to the call in warranty, and the same judgment was prayed against them which had been asked against him. The executors reiterated the plea to the jurisdiction filed by Baker, and, in addition, demurred on the ground (1) of no cause of action; (2) because the defendant could not sue them on the warranty until actually evicted; and (3) because a call in warranty could not be engrafted on an action of ejectment, the sole purpose of which was the settlement of the controversy between the parties plaintiff and defendant, in regard to their title to the property. The executors also insisted that, even if they should be held liable, under the call in warranty, they owed no interest from the date of the sale, because White had been in the enjoyment of the property from the time of his purchase. George G. White sub mitted his rights to the court with consent that if the case should be decided in favor of the plaintiffs, judgment should be entered against him for such amount as the court *On the 31st day of October, 1838, J. H. [7 might deem proper. On the 25th of April, Chism, by a deed drawn in the county of 1890, the plaintiffs filed their replication to Harrisburg, sold to R. B. Dobbins, for the the defendant's plea of limitations, in which sum of $500, the bounty certificate for 1280 they set out that they, the plaintiffs, claimed acres of land first above mentioned. The the property in controversy as the heirs at clerk of the Board of Land Commissioners for law of J. H. Chism, and that at the time of Harrisburg county, in the performance of his the taking of possession of the land in con- duty under the Texas law, made a return of troversy, by the defendant, and those under the issue of the headright certificate, describ whom he claimed, two of the plaintiffs, Mrs.ing it as "a second class certificate, No. 990, Boling and Mrs. Evans, were married women, and consequently the statute of limitations did not run against them. The replication contained the further averment: "Said plain tiffs further show that the defendants, on their claim of title to the land in controversy, deraign their title through a forged pretended deed of conveyance, to wit, a pretended deed which defendants claim is a transfer of the headright certificate, by virtue of which the land in controversy was patented by the state of Texas to J. H. Chism, and, therefore, in law said pleas of three and five years' limitations cannot prevail." 6] *The demurrer to the jurisdiction of the court to entertain the call in warranty was overruled, and the case was tried by a jury, resulting in a verdict for the plaintiffs for the "J. G. Hutchinson, President. "John Woodruff, Associate Commissioner. "Attest: Thos. Wm. Ward, Clerk.” issued in November, 1838, to J. H. Chism for one third of a league of land." In 1840, Texas created a "Traveling Board," whose duty it was to inspect the records of all the Boards of Land Commissioners, "and ascertain by satisfactory testimony what certificates for lands had been issued by the respective boards to legal claimants, and report as soon thereafter as practicable to the Commissioner of the General Land Office such certificates as they find to be genuine, setting forth in their reports the number and date of the certificates, the quantity of the land, and the name of the person to whom it was issued." Sayles' Early Laws of Texas, vol. 1, p. 385. In June, 1841, this Board made its report to the General Land Office, and described the headright certificate here involved, as follows: "Second-class certifi "Know all men by these presents, that I, J. H. Chisholm, for the sum of $150 to me paid by E. M. Robinson, do hereby sell, trans fer, and convey to the said Robinson, his heirs and assigns forever, my headright for one third of a league of land, No. dated November, 1838, issued by the Board of Land Commissioners for Harrisburg County, together with the land upon which the same may be located, to have and to hold the same to him, the said Robinson, his heirs and assigns forever, and I agree to warrant and defend the said claim against all claims whatsoever. "Witness my hand and seal, at Houston, December 2, 1838. cate, No. 701, issued November 1, 1888, for | papers in his possession,*proceeded to Texas[9 one third of a league of land to J. H. Chis- for the purpose of executing his agency. On holm." On the 27th of October, 1852, the arriving there, he went to the land office and following document was recorded in Harris exhibited the papers. The officers of the land county, Texas-W. R. Baker being at that office pronounced the claim valid and in all time the clerk of said county: respects regular, but declined to act upon it because there was a defect in the power of attorney, it having been acknowledged by a Kentucky official and not by a commissioner of the state of Texas. In consequence of this fact, Moreman was unable to obtain the patent for the land, and left the papers with a Mr. Ferguson, in Austin, Texas, and returned to Kentucky. Before a new power of attor ney could be executed the father of Chism died, and Moreman's arrangements with him were thus terminated. Subsequently, on the request of the mother of Chism, Moreman wrote to Ferguson for the papers, and they were returned in an envelope. Moreman handed over this envelope as he received it at the postoffice, without examination, to Mrs. Chism. There was also testimony tending to show that after this date the heirs of Chism sent the papers thus received (which are not very accurately identified) to Texas for the purpose of obtaining the land, and that the papers thus sent, whatever they were, were burned by accident. "J. H. Chisholm. "Witnesses: George W. Lively. On January 2, 1858, J. M. Steiner deposited in the General Land Office of Texas the certificate No. 990, for one third of a league of land, issued, as above stated, to J. H. Chism, and lands were taken up thereunder in Hill county. Texas, and patent was issued therefor. On the 25th of July, 1888, a copy of the paper which had been recorded in the county of Harrisburg was placed on record in Hill county. The plaintiffs, as heirs of J. H. Chism, claimed the land covered by the patent issued under this headright certificate. Their case substantially depended upon testimony tend ing to show that after serving in the army of Texas, Chism returned to Kentucky, and stated that he was entitled to certain lands in Texas, and had with him papers so showing; that he subsequently went again to Texas for the purpose of looking after his land claims, and returned to Kentucky about November, 1838; that on his second return he also stated that he had land in Texas, and had sold some; and that he then had papers indicating his ownership of land in that state. The testimony of his sisters and others tended to identify one of the papers which he had with him on this last occasion with the land certificate No. 990. There was testimony to the effect that he was a good penman, that he signed his name J. H. or J. Harvey Chism, and his name appeared as such on the army rolls and other official documents of the Republic of Texas. He died in 1839. After his death, in 1850 or 1851, his father placed the papers relating to the claim of the son for Texas lands in the hands of Augustin Moreman, and gave him a power of attorney, in order that he might visit Texas and perfect the claim. Moreman, with the The deposition of Moreman was taken; annexed to it was a certified copy of the original certificate No. 990, issued to J. H. Chism. This was shown to him, and he was asked whether the original, of which it was a copy, was among the papers which were turned over to him in 1850 or 1851 by the father of J. H. Chism, and in connection with which his power of attorney was given. Mr. Moreman answered: "I have examined the above copy, and should say that the original of which it is a copy was among the papers turned over to me by the father of J. H. Chism. The language seems familiar, and I recognize some of the terms, as 'having an honorable discharge' and 'being a single man. The original paper was folded twice, and the folds were somewhat frayed with handling, looking like an old paper; the writing was remarkably effeminate. I cannot say definitely whether the original paper was returned to the father or mother of J. H. Chism or not. The last time I ever saw them was in Austin, Texas, in 1850 *or [10 1851, in the month of May." The witness then proceeded to state the facts connected with his employment, his journey to Texas, his going to the land office, and his failure because of the defect in his power of attorney. The defendant's case was supported by the testimony of Baker, who said that he bought the certificate as the agent of one Robinson, and that at the time the transfer was drawn the certificate was delivered to him by the seller. Describing the seller, he said: "He represented that he had been serving in the army, and I have an indistinct memory that I called his attention to a discrepancy or difference in the spelling of the name, and that the explanation was that some people spelled it as it was pronounced, according to the sound." He then testified that the original transfer was lost, and that the witnesses whose names purported to be affixed to it and the officer before whom it purported to have been acknowledged were dead; and that Robinson, the principal for whom he claimed to have acted in buying the certificate, lived in the state of New York, and was known to nobody in Texas, except himself and family. His testimony in regard to Robinson was indefinite. He said that the man was alive some few years before and was in New York, but gave no address by which he might be found. He further testified that he had sold this certificate, along with others, as the agent of Robinson to J. De Cordova, and that De Cordova had resold it to him. That, as the owner of this certificate, he had employed a man by the name of Steiner to apply for and enter land thereunder. Messrs. E. H. Graham and Tarlton & Morrow for plaintiff in error. Messrs. Morgan H. Beach, T. W. Gregory, and McKinnon & Carlton for defendants in error. Mr. Justice White delivered the opinion of the court: 11] *The assignments of error are addressed, first, to the alleged illegal admission of evidence; secondly, to the refusal of the court to give certain charges; and, thirdly, to the charges actually given. 1st. The defendant objected to the introduction of the deed of sale made by J. H. Chism on October 31, 1838, of his bounty certificate, because it was res inter alios and irrelevant. The objection was untenable. The issue of forgery vel non of the deed from which the title in controversy was deraigned clearly made the proof relevant. The evidence tended to show the manner in which J. H. Chism signed his name at or about the time it was contended that the transfer signed by J. H. Chisholm had been executed. It was also admissible as tending to show how J. H. Chism then valued Texas land, and thus to disprove the claim that he had sold a certificate entitling him to 1400 acres at $150 at just about the same time he had obtained $500 for a certificate for a less quantity. Irrespective of this, testimony had been elicited without objection to the effect that J. H. Chism had declared, on his second return to Kentucky, that he had sold land in Texas, and this deed was competent to explain that statement. It is a matter of no moment whether testimony as to these declarations of J. H. Chism was admissible or not, since it was admitted without objection, and it was competent to offer evidence to throw light upon and explain them. 2d. The objection taken to the statement of the witness Moreman, that "he should say" that the original, of which the certificate produced was a copy, was among the papers turned over to him by the father of J. H. Chism, went, obviously, to the effect and not to the admissibility of that statement. Be sides, the objection separates the words "I should say" from the whole context of the witness' testimony; whereas the context makes it clear that those words, instead of being the expression of a conjecture, were simply a form of speech, for, after using them, the witness proceeded to furnish the basis for his state ment by describing the original document in such a way as to give emphasis to his identification of the copy. *3d. The court refused to instruct the [12 jury, at defendant's request, as follows: The uncontroverted evidence in this cause shows that the certificate by virtue of which the land in controversy was located came into the hands of W. R. Baker, as agent of E. M. Robinson, as a purchaser, in December, 1838, and that it was thereafter located on the land by Steiner as the agent of Baker, who had acquired the title of Robinson in the same, and if the person who sold the same to Robinson through Baker, under whatever name, was, at the time of the sale to Baker, the owner, of the certificate, you will find a verdict for defend ant; and in this connection you are instructed that it is a presumption of fact that a person absence of evidence to the contrary, whether in possession of a certificate is the owner in the he have a written assignment or not, and it is shown by the evidence that the certificate in question was in possession of a person who sold it to him for Robinson recently after it was issued, it having been issued in November, 1838; if you should believe such person was not the same to whom it was issued, yet, unless the evidence shows that the person to whom it issued had not sold it, you would be authorized to find for the defendant." This charge was rightly refused. It prac. tically requested the court to disregard the proof, and amounted to a request to instruct a verdict for the defendant. The very issue in the case was whether the certificate did or did not come into the hands of Baker, as agent, in 1838. The reliance of the defendant was on the testimony of Baker, and the fact that the name J. H. Chisholm and the name J. H. Chism were idem sonans. But Baker's testi-. mony was directly contradicted by that of Moreman, and it is impossible to reconcile the two. If the certificate was in Moreman's hands as testified to by him, it could not have been in the hands of Baker, in 1838, as sworn to by him. There were, besides Moreman's testimony, many circumstances tending to refute Baker's statements. These were the fact that the transfer from Robinson was not put on record until 1852, when Baker was clerk, and therefore himself made the record; the loss of the original; the fact that the transfer was made in the name of Robinson, *whose ex-[13 istence and whereabouts were so meagerly disclosed as to render it impossible from the testimony to discover him; that, although the first transfer in 1838 purported to have been made in the name of Baker as agent, there was a subsequent transfer by Baker to De Cordova, and yet, a third transfer from De Cordova back to Baker; that the patent for the land was not obtained until 1858, many years after Baker claimed that he was in possession of the certificate; and, finally, that the transfer itself, when examined by the light of surrounding facts, affords some ground for the claim that Baker could not have had the certificate in his possession in 1838, when the transfer was made. The certificate contained six statements: First, its class; second, the quantity of the land for which it issued; third, its number; fourth, the date of its issue; fifth, the name of |