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|
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.
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.
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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