FIDELITY & COLUMBIA TRUST CO. et al. were raised in the appeal of the other appel

(252 8.W.)

Ex parte JACKSON. (No. 3990.) (Supreme Court of Texas. May 10, 1923.)

4. Habeas corpus 44-Supreme Court's jurisdiction in habeas corpus restricted to civil

actions.

The jurisdiction of the Supreme Court to grant writs of habeas corpus is defined by Const. art. 5, § 3, as such power as may be prescribed by law, and by Rev. St. art. 1529, is restricted to those instances where the confinement is by virtue of an order, process, or commitment issued on account of the violation of some order, judgment, or decree entered by a court or judge in the trial of a civil case, so that the Supreme Court cannot grant the writ to inquire into the validity of the imprisonment of one for contempt in refusing to testify before a grand jury while it was investigating criminal charges.

diction to issue the writ of habeas corpus in this case, and therefore cannot inquire into the legality of relator's confinement.

The jurisdiction of this court to grant writs of habeas corpus is defined in Revised Statutes, art. 1529, which confers power upon this court "to issue writs of habeas corpus in all cases where any person is restrained in his liberty by virtue of any order, process or commitment, issued by any court or judge, on account of the violation of any order, judgment or decree, theretofore made, rendered or entered by such court or judge in any civil cause." It is by virtue of this staťute that this court issues writs of habeas corpus. Ex parte Lipscomb, 111 Tex. 409, 417, 239 S. W. 1101; Ex parte Lytle, 99 Tex. 405, 406, 89 S. W. 956.

[1] It appears therefrom that our jurisdiction to issue the writ is limited to those instances where the confinement is by virtue of an order, process, or commitment issued on account of the violation of some order, . Judgment, or decree entered by a court or We have judge in the trial of a civil case. no general jurisdiction to grant the writ, as has the Court of Criminal Appeals, for the reason that this statute limits our power in the language just stated; that is, we may inquire only into the restraint brought about by an order or process of the court issued because of the violation of some order, judgment, or decree in a civil case. Ex parte Zuccaro, 72 Tex. Cr. R. 214, 162 S. W. 844, 846; Ex parte Aldarete, 83 Tex. Cr. R. 358, 203 S. W. 763; Ex parte Duncan, 78 Tex. Cr. R. 447, 182 S. W. 313, 2 A. L. R. 222; State v. Clark, 79 Tex. Cr. R. 559, 187 S. W. 760, 766.

CURETON, C. J. The relator is confined in the jail of Williamson county under a commitment issued out of the criminal district. trict court of that county. Prior to commitment he had been called as a witness before the grand jury, which was engaged in investigating criminal charges against certain persons. He declined to testify before the grand jury, and was brought before the district court. He persisted in his refusal to testify, and the court adjudged him guilty of contempt, fixed his punishment at a fine of $100, and committed him to the custody of the sheriff of Williamson county until he should pay the fine, and until "he shall have fully and truthfully answered the questions" propounded to him. Upon the order of the court a commitment issued, and relator is confined in jail by virtue thereof.

Duncan's Case illustrates the limited jurisdiction of this court. Hon. John T. Duncan was attorney in a certain civil case tried in the district court of the Twenty-Second disThe case was appealed, and Judge Duncan filed a brief for one of the parties. Objection was made to a portion of the language used in this brief, and for which the trial court held him in contempt. He thereupon applied to this court for a writ of habeas corpus, which was refused without a written opinion. One of the judges, however, indorsed on the application that this court declined to issue the writ for lack of jurisdiction. 78 Tex. Cr. R. 447, 182 S. W. 313, 2 A. L. R. 222. It is apparent that Judge Duncan was held in contempt, by the trial court, not for violating any order made by the court in a civil case, but because of certain language used in a brief filed in the case. From this statement it appears that, although the alleged contempt arose out of a civil case, yet, since it did not arise by reason of a violation of the court's order, the Supreme Court declined to take jurisdiction.

We are asked to issue a writ of habeas corpus, admit the relator to bail, and upon final hearing to discharge him from confinement. We have concluded that we have no juris- The Court of Criminal Appeals, as shown by

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the report of the case, did take jurisdiction, | stitutions of 1845 (article 4, § 3) 1861 (article and discharged the relator, 4, § 3) 1866 (article 4, § 3), and 1869 (article

In Ex parte Aldarete, cited above, Presid- | 5, § 3), the Supreme Court had power to issue ing Judge Morrow of the Court of Criminal | writs of habeas corpus in all cases, the lanAppeals, after referring to the statutes giv- guage of the several Constitutions mentioned ing that court jurisdiction, and the constitu- being general, and substantially to the effect tional provision relating to this court, correct- that "the Supreme Court and the judges ly states the rule as to the jurisdiction of this thereof shall have power to issue the writ of court as follows: habeas corpus." San Antonio & Aransas Pass Ry. Co. v. Blair, 108 Tex. 434, 469, 196 S. W. 502, 1153, 1163; Batts' Ann. Civil Stat. (1895) vol. 1, p. 462. However, by the Constitution of 1876 (article 5, § 6) jurisdiction over criminal cases was taken from the Supreme Court and confided to the Court of Appeals; the provision of previous constitutions conferring Power upon the Supreme Court to issue writs of habeas corpus was omitted, and that power, in language broad and general, was conferred upon the Court of Appeals. Harris' Const. pp. 361, 373.

"The effect of these constitutional and statutory provisions, as the writer understands them, is that the Court of Criminal Appeals is vested with authority to issue writs of habeas corpus in all cases where a person is illegally restrained of his liberty, and that the act of the Legislature vesting in the Supreme Court authority to issue such writs where restraint grows out of a civil case gives the Supreme Court concurrent jurisdiction with the Court of Criminal Appeals in such cases."

Since relator's imprisonment grows out of his refusal to testify before the grand jury while it was investigating criminal charges, it necessarily follows that he was not adjudged guilty of contempt for violating an order of the court in a civil case, and that therefore this court has no jurisdiction to consider his application for habeas corpus. The insistence is made, however, that we have power to grant the writ under the common law; that since the Supreme Court is a constitutional one, with general jurisdiction, it has authority to issue a writ of habeas corpus, notwithstanding the limitations of the statute. There is no merit in this contention. The Constitution, section 3 of article 5, expressly makes the jurisdiction of this court to issue writs of habeas corpus subject to legislative limitation. This section, in so far as here applicable, reads:

"The Supreme Court and the justices thereof shall have power to issue writs of habeas corpus as may be prescribed by law."

[2] It is thus seen that in this respect the jurisdiction of this court is made subject to legislative control; and it is elementary that in such instances the Constitution prevails over and supplants the common law. Cooley's Const. Lim. (5th Ed.) p. 73. It is a familiar practice to limit the jurisdiction of appellate courts to issue writs of habeas corpus. 29 Corpus Juris, pp. 117, 118.

The history of the subject in this state shows quite definitely that the constitutional purpose was to make the jurisdiction of this court to grant writs of habeas corpus subject to legislative limitation. Under the Con

After the adoption of the Constitution of 1876, and prior to the amendment of 1891 (see Laws 1891, p. 197), we have found no instance where the Supreme Court issued a writ of habeas corpus.

The Court of Criminal Appeals, in the case of Childers v. State, 30 Tex. App. 160, 16 S. W. 903, 905, 28 Am. St. Rep. 899, referring to the power of the Supreme Court under the Constitution of 1876, stated that the judges of this court could not issue the writ of habeas corpus.

It is clear then, we believe, that prior to the adoption of the Constitution of 1876 this court had general authority to issue writs of habeas corpus; while after the adoption of that Constitution, we had no power to issue, and did not issue, such writs.

However, in 1891, section 3 of article 5 of the Constitution was amended, and authority was conferred upon this court to issue writs of habeas corpus in such instances "as may be prescribed by law"; although the Legislature did not enact the statute under which we now issue writs of habeas corpus until 1905. Vernon's Complete Texas Statutes, art. 1529.

It is clear, therefore, that the language of the Constitution subjecting our jurisdiction to issue writs of habeas corpus to legislative control was not unintentionally or carelessly used, but arose out of experience under the various Constitutions heretofore named by us, and it must be given effect. That we have no power to issue the writ of habeas corpus in this case does not admit of doubt.

The application of relator is dismissed.

(252 S.W.)

CHAPMAN v. KELLOGG et al.

(No. 360-3197.)

8. Evidence 324 (3)-Evidence of reputation of ownership to land and deed therefor held admissible.

In action involving title to land, evidence (Commission of Appeals of Texas, Section B. of a witness that there was information and

May 30, 1923. Rehearing Denied

June 27, 1923.)

Under the civil law, delivery of a deed was neither required or permitted.

2. Deeds 208(4)-Filing_deed for record proof of delivery and acceptance.

The filing of a deed for record under the registration statutes is sufficient proof of delivery and acceptance.

3. Evidence 372 (7)—Certified copy of deed found in papers of clerk's office admissible as ancient record as against affidavit of forgery. A certified copy of deed of 1836, found in the "archives" of the clerk's office and recorded in 1845 in the deed records of the county, was admissible under Vernon's Sayles' Ann. Civ. St. 1914, art. 3699, and having been of record for more than 70 years was admissible, under Vernon's Sayles' Ann. Civ. St. 1914, art. 3700, as an ancient record which an affidavit of forgery could not exclude.

4. Appeal and error 1001 (1) Court of Civil Appeals erred in finding deed to be invalid in view of evidence of its genuineness.

Where there was evidence to sustain validity of deed and the jury found validity, the Court of Civil Appeals erred in finding the deed to be invalid.

5. Pleading 304- Party claiming under transfer not properly authenticated for record has burden of removing suspicion cast on it by affidavit of forgery.

Where a transfer executed in 1838 was not properly authenticated for record in 1845, in view of an affidavit of forgery, one claiming under the transfer had the burden of removing the suspicion cast on it by the affidavit. 6. Appeal and error 1095—Practice relative to remanding case to trial court stated. Where Court of Civil Appeals, in its opinion on reversing a jury finding of title to land, indicates that it would have remanded the case because judgment was against the weight of evidence, if given opportunity to do so, the Supreme Court can only remand the case to the trial court for another trial, even though inclined to affirm the trial court's judgment if it had jurisdiction over all fact questions.

7. Appeal and error 177(7) Rendering Judgment by Court of Civil Appeals without remand held error.

knowledge in their family that witness' father owned the land involved, and that it was understood that he was deeded the land in payment for legal services, was admissible, not being offered as evidence of title, but only as a circumstance showing an assertion of ownership

under the deed.
9. Judgment

497(1)—Recitals in judgment in collateral attack not contradicted by other portions of record.

Where judgment on its face recited due and legal service of citation, such recitals, in collateral attack, cannot be contradicted by other portions of the record. 10. Judgment 638 Judgment of another county involving title to land in question held admissible.

In action involving title to land, where defendant claimed under a transfer to C. in 1838, a judgment in another county involving land in that county and land in county of venue, in which the unknown heirs of C. were made parties defendant and were represented by an attorney appointed by the court, was admissible. 11. Process 103-Citation by publication to unknown heirs must be in county where land situated.

In actions involving title to land, where service by publication is necessary, citations by publication to unknown heirs must be published in the county where the land is situated.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Trespass to try title by Mrs. Rose Kellogg and others against J. R. Chapman. Judgment for defendant was reversed and rendered by the Court of Civil Appeals (201 S. W. 1096), and defendant brings error. Judgments of the district court and Court of Civil Appeals reversed, and cause remanded for new trial.

Terry, Cavin & Mills, of Galveston, Davis & Ramsey, of San Augustine, and Oliver J. Todd, of Beaumont, for plaintiff in error.

W. D. Gordon, of Beaumont, for defendants in error.

POWELL, J. This is an action in trespass to try title instituted on the 15th day of August, 1915, in the district court of San Augustine county, Tex., for the recovery of the A. G. Kellogg one-fourth league survey in said county. The suit was brought by the Kelloggs as heirs of the original grantee.

In action involving title to land, where the issue submitted was as to the fact of execution of certain deeds and rescission of one of them and retransfer to grantor, on appeal from The defendant, J. R. Chapman, in the trial judgment in defendant's favor it was error for court, answered by a plea of general denial the Court of Civil Appeals to reverse the judg- and not guilty. As found by the district ment without remand on the theory that there was no evidence to sustain the judgment and court, Chapman had a complete chain of that if the case were remanded defendant could title from the sovereignty of the soil, if the not secure proof of the kind held necessary. two conveyances to be hereinafter discussed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

were valid and genuine. There was no possession of the land and no limitation question is involved.

The case was tried before a jury, to whom was submitted three special issues as follows:

"Question No. 1: 'Did or did not A. G. Kellogg execute and deliver to William Coote, as a conveyance, the instrument purporting to be from Kellogg to Coote, and was it accepted by William Coote as a conveyance to him of the title to the land in controversy? If you find the affirmative of the issue, you will answer, "Yes." If you find the negative of this issue, you will answer, "No."

"To this question the jury answered, 'Yes.' "Question No. 2: 'Was or not the purported transfer from William Coote to Terry H. Cahal purporting to convey to Terry H. Cahal all the right, title, and interest of Coote to the land in controversy a genuine instrument of conveyance from William Coote mentioned in the Kellogg deed? If you answer this in the affirmative, the form of your answer may be, "Yes," If you answer in the negative, the form of your answer may be "No.""

"To this question the jury answered, 'Yes.' "Question No. 3: 'Did or did not William | Coote, prior to the 28th of February, 1838, rescind the deed from Kellogg to himself or retransfer to Kellogg, or his estate, the land in controversy? If you determine this in the affirmative, let your answer be, "Yes." If you determine this in the negative, let your answer be, "No."'

"To this question the, jury answered 'No.'"

In connection with aforesaid issues the trial court read a charge explanatory of the questions submitted, containing definitions, etc. The charge was accepted by counsel for all parties. No objection was urged to it, nor was any special charge requested, except one by counsel for Chapman. The record does not show whether the latter was given to the jury or not. At any rate, no objection to it is disclosed by the record. Therefore the case went to the jury upon a charge entirely satisfactory to all parties. No one asked a peremptory instruction, so far as the record discloses. The charge was most favorable to the Kelloggs, placing the burden of proof upon Chapman to establish the genuineness of the disputed deeds.

support the trial court's judgment. Then, in another place, that court says the judgment has no sufficient basis in the record. At any rate, it overthrew the verdict of the jury and rendered judgment as aforesaid. It not only held that Chapman had not sustained his title, but that he could not do so and should not be given another chance to do so. This was a rather unusual decision, in the latter regard, when the title depended upon the validity of two deeds which could be established by witnesses who might be located. We shall allude hereafter to the action of the Court of Civil Appeals in rendering rather than remanding this case, even if that court had been correct in its application of the law to the facts before it.

In an effort to eliminate the deed from Kellogg to Coote and the one from the latter to Cahal, Attorney Gordon, on behalf of the Kelloggs, filed an affidavit of forgery, attacking the same for lack of genuineness. This affidavit was followed up on the trial by various objections by affiant to the admissibility of aforesaid conveyances when they were offered in evidence by counsel for Chap

man.

Counsel last above mentioned placed C. A. Beard, county clerk of San Augustine county, on the stand. He testified that there was a set of papers in his office and known as the "archives"; that he had custody of such archives, among which was an original deed from Kellogg to William Coote, conveying the land in controversy. This original deed from these archives was offered and admitted in evidence. It read as follows:

Filed March 17, 1845.
"A. G. Kellogg to Coote & Terry H. Cahal.
Selloe Tercero Dos
Reales the Free State of Coahuila and Texas,
Municipality of San Augustine. Par all Ber-
neodo 1834 y 1836. This indenture, this third
day of January, in the year of our Lord one
thousand eight hundred and thirty-six, between
Albert G. Kellogg, of the municipality and
Coote, of the same place. of the other part,
state aforesaid of the one part, and William
witnesseth: That the said Albert G. Kellogg,
for and in consideration of the sum of two-
hundred dollars to him in and paid at and be-
fore the sealing and delivering of these pres-
ents, the receipt whereof is hereby acknowledg-

But, faced by jury findings which com-ed, hath granted, bargained, sold, and conveypletely established the Chapman title, as above shown, counsel for the Kelloggs, in motion for a new trial, vigorously attacked the verdict as being without support in the record. The trial court overruled that contention and entered final judgment in favor of Chapman for the land in controversy.

Upon appeal to the Court of Civil Appeals, that court, in an opinion by Justice Brooke, reversed the judgment of the trial court and rendered judgment in favor of the Kelloggs for the land in suit. See 201 S. W. 1096.

The Court of Civil Appeals at one place states there is no evidence in the record to

ed, and do by these presents grant, bargain, sell, and convey, unto the said William Coote, interest that I now have, or that the laws may his heirs and assigns, all my right, title, and entitle me to afterwards, to a tract or parcel of land lying and being in the municipality aforesaid, situated on the west bank of the Ayish bayou, fronting on said stream and joining William Coote's survey on the southwest, containing one-quarter league, being the aforesaid Albert G. Kellogg's headright of land which he obtained under the colonization law from George Antonio Nixon, commissioner for Lorenzo De Zavala's colony, said grant being dated the eighth day of June in the year eighteen hundred and thirty-five, to have and to hold