Craddock v. Merrill
| Decision Date | 31 December 1847 |
| Citation | 2 Tex. 494 |
| Parties | JOHN R. CRADDOCK v. WILEY B. MERRILL |
| Court | Texas Supreme Court |
Appeal from Fannin County.
Where a bond for title to land in Texas, with two subscribing witnesses thereto, was executed in the state of Arkansas, and its execution acknowledged before the presiding judge of a county court in that state, who subsequently made oath before a notary public in Texas that it had been executed and acknowledged before him, and that his certificate of such acknowledgment was genuine: Held, that the execution of the bond was not proven in the manner required by the laws of this state, nor in accordance with the known rules of evidence. Before secondary evidence of this nature was admissible, it must first have been proven that the subscribing witnesses were dead, or beyond the jurisdiction of the court, so that their testimony could not be had.
Where an instrument is not proven in the mode required for its admission to record, it acquires no authenticity from having been, in point of fact, recorded.
The material facts of this case are stated in the opinion of the court.
Everts, for appellant.
Morrill, for appellee.
This was an action to try the title to land. The plaintiff, appellant in this court, claims title from Jersugan and wife, the original grantees from the republic. The defendant claims from the same grantees by a bond to make title, of an older date than the deed from Jersugan and wife to the plaintiff. To the authentication and proof of this bond, when offered in evidence, the plaintiff objected, but the objection was overruled and the bond given in evidence to the jury. The overruling the objection so taken presents the most material point for our consideration.
It appears from the evidence sent up to this court that the bond was executed in the state of Arkansas; that there were two subscribing witnesses to it. There was no effort to prove the execution by either of the subscribing witnesses, nor was there any evidence that their testimony could not be procured. It had been, it seems, admitted to record in Lamar county, on the evidence of C. P. Thomas, who certifies that he was the presiding judge of the county court of Searcy county, in the state of Arkansas, before whom the bond was acknowledged. He made oath before a notary public of Lamar county, that it was acknowledged before him and executed, and that his certificate of such acknowledgment...
To continue reading
Request your trial
-
Morrow v. State
...not produced. It seems from the authorities that defendant's objection should have been sustained. Sample v. Irwin, 45 Tex. 567; Craddock v. Merrill, 2 Tex. 494; White v. Holliday, 20 Tex. 679; 1 Greenl. Ev. §§ 572, Other objections made to this bill of sale as evidence are not, in our opin......
-
Bledsoe v. Haney
...was not so authorized, the instrument so offered would be rejected, notwithstanding the fact it may have been duly recorded. In Craddock v. Merrill, 2 Tex. 494, Judge Lipscomb, speaking with reference to the execution of a bond, where the same was attested by two subscribing witnesses and w......
- State v. Same
-
Holliday v. Cromwell
...proven in the mode required for its admission to record, it acquires no authenticity from having been in point of fact recorded. Craddock v. Merrill, 2 Tex. 494.D. E. Crosland, for appellees. In reply to the second assignment, we say the court ruled correctly in admitting the deed of Serna ......