White v. Holliday

Decision Date01 January 1858
Citation20 Tex. 679
PartiesSAMUEL A. WHITE v. THOMAS HOLLIDAY.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

It would seem that where a party fails to cause his field-notes to be returned within the time prescribed by law, whereby his location becomes void and the land open to location by others, he cannot obtain relief against his loss, however great the hardship, from the judicial department of the government, except where the land has been since located by another, under such circumstances as would entitle the first locator to claim that the second location was, in equity, made in trust for him. For such circumstances see The State v. Vickery, 19 Tex. 326.

Where a party litigant produces a deed, and asserts a right under it, and the grantor, who has no interest, is offered as a witness, to prove the execution of the deed by himself, such evidence is admissible, without calling the subscribing witnesses, or accounting for their absence.

Appeal from Victoria. Tried below before the Hon. Fielding Jones.

The facts appear from the opinion. The deed was authenticated by the acknowledgment of it before a notary, by January, the grantor.

S. A. White, for himself. The material point for the consideration of this court is, whether the deed from January to plaintiff was properly authenticated, by the acknowledgment before the notary; and if not, was the maker competent to prove it in open court. This last seems to me to be determined in the case of Holdeman v. Craft, in MS., as appears by the Texas Digest, title ADMISSIONS. I have not seen the decision in that case; but in the absence of all adjudication, the fact that our statute authorizes the grantor to acknowledge the grant for the purpose of authentication, before a notary public, or for the purpose of record before the clerk, takes it out of the common law rule, requiring a subscribing witness to prove it; and once out of that rule, there is no authority requiring a better witness than the grantor. (Perhaps an exception in the case of prior creditors.) But if the acknowledgment is not sufficient, the 2610 art. Hart. Dig. expressly makes all acknowledgments taken by a notary public evidence in all the courts of the state; which is believed conclusive on this head.

W. S. Glass, for appellee. I. A grantor cannot prove his own deed. This is the common law, and we have not changed it by statute. It is held to be the rule of decision in other states of the union, which have adopted the common law, and where registry laws are in force, but no change in this particular has been made by express statute. The policy of registry laws has not been held to repeal by implication the common law on this subject. The reason of the rule still exists in all its force. 4 Phill. Ev. p. 361, Cowen & Hill's Notes, where the authorities are collected.

II. Notaries public are authorized to take the acknowledgment and proof of deeds “in the manner provided for by law, to entitle them to registration;” and to give certificates thereof, which shall be evidence of the facts therein contained in all the courts of the state. Hart. Dig. arts. 2606, 2610. The notary's certificate is evidence of the acknowledgment, and the effect of that acknowledgment is to entitle the instrument to registration. The notary has no authority to take an acknowledgment for any other purpose; and no other effect can be given to it. That the legislature so intended is evident from the fact that the district court act of 1846, which was passed at the same session with that regulating the office and duties of notaries public, and went into effect the same day, provides that all duly registered instruments shall be admitted in evidence, without the necessity of proving their execution, provided they be filed among the papers of the suit three days before the trial, and notice of the filing given to the opposite party, etc. Hart. Dig. art. 745. By unavoidable inference, although duly acknowledged and recorded, their execution must be proven, and of course in accordance with the common law, unless they are filed and notice given.

III. But the ruling of the court upon the admissibility of the deed as evidence is wholly immaterial as to the result, if the exceptions to the amended petition were rightly sustained. The amended petition put in issue the validity of the title under which the defendant claims, on special exceptions thereto.

ROBERTS, J.

The appellant having brought an action of trespass to try title, based his right upon two surveys, of six hundred and forty acres each, by virtue of two certificates.

The field-notes of one of them were not returned to the general land office previous to the first day of September, 1853. The excuse rendered by him for this failure, is that they were filed in a suit pending between the same parties, and that the judge of the court, although applied to in vacation for that purpose, would not grant an order for their withdrawal, nor would the opposite party consent to it. It is not shown for what purpose they were filed; nor can it well be imagined how, otherwise than by being made a part of the pleadings, they could become a part of the records by being filed, so as to take them out of his control. Neither does it appear, if they were beyond his control, that he sought to withdrawn them during either of the two or three terms of the court that must have transpired between the passage of the act of 1852 and the time at which it required the field-notes to be returned. But were the excuse much stronger, we are not prepared to hold that it would avail the appellant. The legislature had repeatedly extended the time for the return of field-notes, previous to the act of 1852. The time given in this act, being about eighteen months, and expiring before it could be again extended by the convening of another session of the legislature, indicates its design to have been a peremptory requirement, as matter of policy on the part of the government in the administration of its land system. It is only necessary now to intimate the inclination of our opinion, that this statute should have been strictly complied with by the party, in order to preserve his right under his survey. The case must turn on another question, which relates to the admissibility of testimony.

To establish his title to the other certificate, appellant offered in evidence an attested deed from January to himself, authenticated for record, but which had not been filed and notice thereof given to appellee in accordance with the statute. The instrument being excluded by the court, January, the grantor, was offered as a witness to establish the deed; and the absence of the attesting witness not having been satisfactorily accounted for, the court refused to permit the grantor to testify for that purpose. To which ruling of the court the appellant excepted.

To the first point here raised, it is hardly necessary to refer; as there was clearly a failure to comply with the requisition of the statute in the admission of a recorded deed as secondary evidence. See Hart. Dig. art. 745. The important question presented is, Can the grantor be admitted as a witness to establish the deed, the absence of the attesting witnesses not being accounted for?

Generally, the subscribing witnesses must be produced to prove an attested instrument. 2 Phill. Ev. 202; 1 Greenl. Ev. sec. 568. From time immemorial men have been predisposed to impart their mutual agreements to third persons, as witnesses. In England, formerly, it is said, the leading best known gentlemen in the neighborhood were usually selected as witnesses of deeds, and the whole transaction was communicated to them. If any dispute arose between the parties to the deed, they constituted a necessary part of the jury to try it. Hence the stringency of the rule, that they must be called as the best evidence, and if they cannot be produced, then their signatures must be proved. By custom, at present, men are indiscriminately chosen as witnesses; capacity to write being the chief qualification. Most usually they are not informed of the contents of the instrument, or the considerations, or attending circumstances, or objects, of its execution; and therefore can generally do no more than recognize their attestation, and identify the parties, when called as witnesses. This is particularly the case in this State, where, for the last thirty years, lands and land certificates have been the leading objects of trade. Whether much or little be communicated to them, to that extent they are the plighted witness, for and between the parties, about their contract. When are they needed? Are they needed at all, when the parties are both agreed upon the same thing, about the execution and objects of the contract, and have no issue or dispute in relation to it? If it be an essential element in their creation and capacity, that they must be produced when the parties are agreed, a party litigant cannot admit his deed by plea or other writing filed in court. That has never been doubted. Lang v. Kaine, 2 Bos. & Pul. 85. This is a stretch to which even Lord Ellenborough, who was the most rigid adherent to the rule, would not go; although he did doubt the sufficiency of a written admission of the grantor's and witnesses' signatures, filed by the attorney in the cause. Milward v. Temple, 1 Camp. 375.

By what stronger evidence can it be made to appear, that the parties to the deed do agree about its execution (and thereby dispense with the subscribing witnesses) than for the grantee to assert its execution in his petition, and to procure the grantor to appear in open court on the trial, and as a witness, swear to the execution, as alleged by the grantee? In the case now before the court, the witnesses cannot know anything, which is material to the ultimate rights of Holliday. It is immaterial to him, so far as his rights to the land are concerned, whether the title to the certificate is vested in January or White. If they were...

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