Moaeian v. cox. 39
and the application of the authorities, produced by plaintiffs, in order
to sustain and establish as valid an instrument bearing date 30 years
ago and upwards, is recognized, but it is believed that those rules
can have no bearing in this case, as the plaintiffs themselves offered
the same, and no objection was made by the defendants, and alter the
same was put in evidence by the plaintiffs it was too late for them to
say that it was not properly in evidence for all legal purposes. It is
true that plaintiff said they introduced it to show that the same was
a forgery,—to deprive the defendants of the benefits of the laws of lim—
itation of five years. It is not believed, however, that the plaintiffs
could occupy the position of having placed the same in evidence with
a view to show the same to be a forgery; and, failing in that, that
something more must be shown by the defendants in order to avail
themselves of it in showing title out of plaintiffs and in them. The
plaintiffs took the hazard, when they put the same in evidence, of es-
tablishing its forgery, or of giving the defendants the full benefit thereof (
in establishing their title. If this be true, then, as the jury say by
their verdict that the evidence fails to satisfy them that the same is
a forgery, of course the plaintiffs inherited nothing, so far as this tract
of land is concerned, and the verdict must stand, if the charge by the
court was correct, viz.: That, as the plaintiffs had put the transfer
in evidence, after having asserted the same was a forgery, the burden
of proof was upon the plaintiffs to satisfy the jury that it was so.
There are many facts and circumstances that tend to the conclusion
that the same is genuine: (1) Its age; (2) there is nothing upon its
face to cast suspicion upon its validity; (3) the acknowledgment was
taken before a person shown to have been a notary public; (4) the
evidence shows that when the transfer from Nelson to Mrs. Moore
V was made, this transfer was passed into Mrs. Moore’s hands. At all
events the evidence is that when A. H. Cox, one of the defendants,
purchased of Moore and wife, the transfer from Morgan to Milford,
the transfer from Milford to Nelson, the transfer from Nelson to Mrs.
Moore, together with the patentfor the land, were respectively ex-
hibited to him (Cox) by Moore and wife. Again, one of the paintiifs
(and the only plaintiff who was a witness) testified that they had no
knowledge of any claim they had in these lands, and never were ad-
vised of it until a land agent of the city of Austin advised them of it,
and offered to bear all the expenses of the t1·ial for the one-half of what
might be recovered. True, this plaintiifproduced in evidence what .
was denominated a will, which he said bore the genuine signature of
Charles Morgan, and he gave it as his opinion that he did not think
the signature to the transfer genuine. And Mr. R. Fisher was placed
on the stand, and by comparing the signature to the transfer with that
to the will, said he did not think they were written by the same per-
son. The jury had both signatures before them, as well as the evi-
dence referred to, and were not satisfied of the alleged forgery. These
signatures are both written with a tremulous hand, and I am unable