20 Tex. 679 (Tex. 1858), White v. Holliday

Citation:20 Tex. 679
Opinion Judge:ROBERTS, J.
Party Name:SAMUEL A. WHITE v. THOMAS HOLLIDAY.
Attorney:S. A. White, for himself. W. S. Glass, for appellee.
Court:Supreme Court of Texas
 
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Page 679

20 Tex. 679 (Tex. 1858)

SAMUEL A. WHITE

v.

THOMAS HOLLIDAY.

Supreme Court of Texas.

1858

          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...

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