Bledsoe v. Haney

• Decision Date: 27 October 1909
• Citation: 122 S.W. 455
• Parties: BLEDSOE v. HANEY.
• Court: Texas Court of Appeals

122 S.W. 455

BLEDSOE v. HANEY.

Court of Civil Appeals of Texas.

October 27, 1909.

Rehearing Denied November 24, 1909.

Appeal from District Court, Lubbock County; L. S. Kinder, Judge.

Action by Jasper N. Haney against W. E. Bledsoe. From a judgment for plaintiff, defendant appeals. Reversed.

Geo. L. Beatty and John R. McGee, for appellant. Bean & Klett, H. C. Randolph, and Dillard & Dillard, for appellee.

RICE, J.

This is an action of trespass to try title, brought in the usual form by appellee against appellant for the title and possession of 80 acres of land in Lubbock county, Tex. The defendant answered by plea of not guilty and the five-year statute of limitations. The case was tried by the court without a jury, resulting in a judgment in favor of appellee, from which this appeal is prosecuted.

The appellee showed title from the sovereignty of the soil to himself by deeds properly recorded, and the judgment rendered in his favor is proper, provided the action of the court was correct in excluding a deed offered in evidence by appellant, showing an outstanding legal title in one Thomas W. Campbell to the land in controversy, or the conclusion of the court to the effect that the statute of limitations did not apply.

Appellant contends by his first assignment that the trial court erred in refusing to admit in evidence the deed from Charles W. Lindley and Marian T. Lindley, his wife, purporting to convey said land to Thomas W Campbell, dated the 14th day of February, 1881, and recorded in the proper county on the 24th of February next thereafter, contending by his proposition thereunder that, if the same had been so admitted, it would have shown a conveyance of an outstanding legal title to the land in controversy to said Campbell, long prior to the time when plaintiff acquired the deed under which he claims from said Lindley. On the trial the defendant offered in evidence a deed from Lindley and wife of Park county, in the state of Indiana, conveying the land involved to Thomas W. Campbell. This deed was acknowledged by Lindley and wife before John J. Woody, a justice of the peace in and for said county on the 14th day of February, 1881, and duly recorded on the 24th day of February, 1881, in the proper county; but the certificate of acknowledgment was defective and not in accordance with our statute. At the time this acknowledgment was taken, no officer was authorized outside of this state to take acknowledgments to deeds of lands in this state, except a notary public, the clerk of a court of record, or a commissioner of deeds for this state. Appellee therefore contends that the action of the court in excluding said deed so offered in evidence was correct; said acknowledgment having been taken by an Indiana justice of the peace who was not authorized so to do. But appellant insists that, notwithstanding this fact, the same should have been admitted in evidence, because the act of the Thirtieth Legislature approved April 23, 1907 (Laws 1907, p. 308, c. 165), so changed the law as to permit its introduction, by providing for the admission in evidence of any deed which may have been actually recorded for a period of 10 years in the proper county, irrespective of whether the same was proved or acknowledged in the manner provided by the laws of this state or not. The act in question reads as follows, to wit:

"Section 1. That article 2312 of the Revised Civil Statutes of the State of Texas, be and the same is hereby amended so as hereafter to read as follows, to wit: "Art. 2312. Every instrument of writing which is permitted or required by law to be recorded in the office of the clerk of the county court, and which has been or hereafter, may be so recorded, after being proved or acknowledged in the manner provided by the laws of this state in force at the time of its registration, or at the time it was proved or acknowledged, or every instrument which has been or hereafter may be actually recorded for a period of ten years in the book used by said clerk for the recording of such instruments, whether proved or acknowledged in such manner or not, shall be admitted as evidence in any suit in this state without the necessity of proving its execution; provided no claim adverse or inconsistent to the one evidenced by such instrument shall have been asserted during that ten years; provided, that the party to give such instrument in evidence shall file the same among the papers of the suit in which he proposes to use it, at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party or his attorney of record; and unless such opposite party, or some other person for him, shall, within three days before the trial of the cause, file an affidavit stating that he believes such instrument of writing to be forged. And whenever any party to a suit shall file among the papers of the cause an affidavit stating that any instrument of writing, recorded as aforesaid, has been lost, or that he cannot procure the original, a certified copy of the record of any such instrument shall be admitted in evidence in like manner as the original could be. And after such instrument shall have been actually recorded as herein provided for a period of ten years, it shall be no objection to the admission of same, or a certified copy thereof, as evidence, that the certificate of the officer who took such proof or acknowledgment, is not in form or substance such as required by the laws of this state, and said instrument shall be given the same effect as if it were not so defective.

"Sec. 2. The...