50 S.W. 167
SMITH et al. 
v. 
CAVITT.
Court of Civil Appeals of Texas.
February 18, 1899.
        Appeal from district court, Freestone county; L. B. Cobb, Judge.
        Trespass to try title by J. W. Cavitt against R. L. Smith and others. Judgment for plaintiff, and 
defendants appeal. Affirmed.
        This is an action of trespass to try title, brought by appellee to recover of appellants 320 acres of 
land of the John Miller survey, situated in Freestone county. Appellee recovered judgment from which this 
appeal is prosecuted.
        Conclusions of fact: The plaintiff showed a regular chain of title to the land from the sovereignty of 
the soil by mesne conveyances down to himself. One of the conveyances was a transfer of the original 
certificate by John Miller to William M. Love. It was shown by one Karner that said transfer was in writing, 
but was lost; that it was made about the time of the survey of the 320 acres in controversy, which was in 
1846. The defendants offered evidence showing that they held the land by mesne conveyances from the 
sovereignty of the soil down to themselves. One link in the chain of their title, to wit, deed of conveyance 
from John Miller to J. K. Williams, dated November 8, 1849, was attacked by plaintiff as a forgery, and the 
question of the forgery was submitted to the jury. The John Miller survey was for 640 acres. The 320 
acres, the land in controversy, was located in a northern portion of the county, the abstract number being 
454. The other 320 acres was located in the southern portion of the county, and its abstract number was 
453. The plaintiff introduced the tax assessor's abstract of Freestone county, showing rendition of taxes 
from 1880, which showed that plaintiff had at no time rendered the 320 acres as abstract No. 454, but 
had rendered 320 acres in the name of John Miller, abstract No. 453, in Freestone county, at three dollars 
per acre, from 1885 to 1895, and at five dollars per acre since. Said assessor's abstract showed that the 
320 acres of abstract No. 454, which is the land in controversy, had been on the unrendered rolls from 
1886 to 1893, and that prior to 1886 it had been rendered for taxes by L. D. Bradley and one King. 
Defendants admit that the plaintiff had paid taxes on the land he had rendered. It was shown that the 
survey in the southern part of the county was worth about one dollar per acre for taxation, and the land in 
controversy about five dollars per acre. The land in controversy had been known for years as the "Cavitt 
Land." Years ago, J. P. Robinson rendered the land in controversy, and paid taxes thereon for Cavitt. 
Plaintiff was never in actual possession of the land in controversy.
        Boyd, Compton & Anderson, for appellants.
        RAINEY, J. (after stating the facts).
        The errors assigned by appellants relate to the rulings of the court on the admission of the testimony 
of one John Karner, who testified as to the existence and contents of the written transfer of the original 
certificate to William M. Love by John Miller, the original grantee; and also to the action of the court on the 
question of the forgery of the deed from John Miller to J. K. Williams, one of the links in appellants' chain 
of title. We deem it only necessary to
Page 168
discuss the issues raised on the admission of said Karner's testimony, for, if the transfer of the certificate 
is properly established, then plaintiff would be entitled to recover, and the action of the court on the 
question of forgery of the Williams deed becomes immaterial, if error, as plaintiff's title is prior to 
defendants', and there are no equities shown entitling defendants to precedence. John Karner testified by 
deposition, and his answers as to the loss and contents of the written transfer of the original certificate 
were objected to on the ground that no sufficient predicate had been made, which objection was 
overruled. Karner testified in relation to the loss of said transfer as follows: "I knew Wm. M. Love since 
1838 up to his death. In 1851 I married his niece. Love and I were more or less associated as partners in 
locating lands from 1838 till within a few years of his death. We kept our papers together, both individual 
and partnership. Whichever was left at home was custodian of our papers. This instrument was in my 
possession, with other valuable papers of Wm. M. Love, at the time of his death; and when I got his 
papers together to turn over to Mrs. Love, I kept this certificate out, as I was familiar with the fact that it 
had been deeded to two different parties, in two different tracts of 320 acres each,—one of the parties 
being Josephus Cavitt, and the other party I do not remember,—having been familiar with these different 
transactions. This certificate was in my possession up to about ten years ago, to my knowledge, and I 
thought it was still in my possession up to last year, but upon examination could not find it when I was 
called on for it by Ben Love. I have lost or mislaid it. Several years after Wm. M. Love's death, I turned 
over to Mrs. Love, his widow, all the papers that were valuable to his estate. I did not keep any other 
paper of Love's except the one I testify about. Mrs. Love was living in Navarro county when I last heard of 
her, about a year ago. The reason I kept the transfer was because I knew Wm. M. Love had sold his 
interest; that he had sold Josephus Cavitt 320 acres, I being present when the sale was made; and the 
other 320 acres to some party whose name I cannot remember." Before secondary evidence of the 
contents of a lost instrument is admissible, it must be shown that diligent search has been made for the 
original. Mr. Greenleaf states the rule thus: "In general, the party is expected to show that he has in good 
faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the 
nature of the case would naturally suggest, and which were accessible to him. It should be recollected that 
the object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and 
that this is a preliminary inquiry addressed to the discretion of the judge." 1 Greenl. Ev. § 558. And 
further: "If it belonged to the custody of certain persons, or is proved, or may be presumed, to have been 
in their possession, they must, in general, be called, and sworn to account for it, if they are within reach 
of the process of the court." No difficulty arises as to the correct rule, but it is sometimes difficult in its 
application to particular facts. Each case is governed by the particular facts shown to exist. The evidence 
of Karner showed that he at one time had possession of the transfer of the certificate, and he had lost or 
mislaid it. There is nothing to show that any one else came into possession thereof thereafter, nor does 
the evidence indicate that it might be found by inquiry from other sources. Waggoner v. Alvord, 81 Tex. 
365, 16 S. W. 1083. We are of opinion that under the circumstances of this case the loss was established, 
and that the court did not abuse its discretion in admitting the evidence.
        The fourth assignment of error complains of the court in admitting, over objections, the following 
evidence of said Karner, to wit: "It was a transfer of the John Miller 640-acre certificate to Wm. M. Love, 
which vested title in Wm. M. Love." The objections urged were: "Because (1) no proper predicate had 
been laid by the plaintiff to admit such testimony, in this: that plaintiff had filed no affidavit of the loss of 
the instrument under which he claimed title, nor had the plaintiff proved by the witness Karner the 
execution and delivery of such instrument, its proper custody, or that diligent search had been made to 
find the original; and (2) because said answer was a conclusion, only, of the witness Karner." As to the 
first objection, a preliminary affidavit as to loss is not necessary. The loss of an instrument can be shown 
on the trial by a witness on the stand, which is sufficient to authorize secondary evidence of its contents. 
Parks v. Caudle, 58 Tex. 216; Trimble v. Edwards, 84 Tex. 497, 19 S. W. 772. The transfer was shown to 
be an ancient instrument, and, its existence having been shown, further proof of its execution was not 
necessary. We have above stated that the proof of loss was shown. The second objection is subject to the 
criticism urged, but, as there was sufficient uncontradicted evidence to show the contents of the 
instrument, it becomes harmless, and will not cause a reversal of the judgment.
        It is assigned that the court erred in admitting in evidence, over objection, the deed to Josephus 
Cavitt from Love, because not properly acknowledged. The introduction of the deed was proper as an 
ancient instrument, and whether properly acknowledged or not is immaterial. Judgment affirmed.