Deen v. Wills

• Decision Date: 01 January 1858
• Citation: 21 Tex. 642
• Parties: CALLOWAY DEEN v. RICE WILLS.
• Court: Texas Supreme Court

21 Tex. 642

CALLOWAY DEEN

v.RICE WILLS.

Supreme Court of Texas.

1858.

It is not essential to the validity of a registry, that the certificate of probate shall state that the witness to a deed signed as witness at the request of the grantor.

In order to render the copy of a deed admissible in evidence under the statute, Hart. Dig. art. 745, it must have been admitted to record upon the requisite acknowledgment or proof; and the certificate of probate should afford evidence of the sufficiency of the proof; and if it does so substantially, though informally, it is sufficient.

The receipt of the tax collector is evidence of the payment of taxes; and the fact that the person signing the receipt acted as tax collector is prima facie evidence of his authority.

Proof by the records of the county in which the certificate was granted, upon which a patent issued, that such certificate had never been recommended or established as genuine and legal, not sufficient to avoid the patent.

ON RE-HEARING.

The patent is prima facie evidence that the genuineness of the certificate had been duly established, and that it was valid from its date. 28 Tex. 560.

To avoid the patent it devolved on the party questioning it to prove that the certificate had not been established in any of the modes known to the law.

Appeal from Smith. Tried below before Hon. W. W. Morris.

Action of trespass to try title.

On the trial the appellant gave in evidence the conditional and unconditional certificate of Wm. R. Powell issued by the board of land commissioners for the county of San Augustine, the first dated June, 1838, the latter in September, 1841, to the introduction of which defendant objected; the court overruled the objection and allowed them to read it. He then offered in evidence the original field notes of survey made by virtue of said certificates in January, 1840. Various other testimony was adduced in the cause on the part of the plaintiff mostly in aid of the facts already presented, none of which is material except the fact of the transfer to himself, from Wm. R. Powell, of the certificate and location.

Defendant offered in evidence a certified copy of a deed from A. C. Walters to himself, from the records of the county court of Smith county, by which said Walters conveyed to defendant six hundred and forty acres of land (the same claimed by the plaintiff); the plaintiff objected to the copy being read, because the proof upon which said deed was recorded was not in compliance with law, nor sufficient; objection overruled. He then introduced a patent from the governor of Texas to said Walters for twelve labors of land, including the six hundred and forty above sold, and a copy of the original survey from the surveyor's office of Smith county, upon which patent issued dated February, 1846. Defendant then proved that he had been in the actual and adverse possession of the land since the fall of 1846, claiming, cultivating and using it. By the books of the assessor and collector, that he had been assessed for the years 1847-48-49-50-52 and '53 for the taxes on 640 acres of land out of the survey made for Walters; and by the receipts of the assessor and collector, that he had paid the taxes so assessed for the years 1850-51-52-53 and '54. These receipts were objected to as proof of such payment, but the objection was overruled.

In reply, the plaintiff proved by the clerk of the district court of Nacogdoches county that the certificate upon which the patent had issued to Walters had never been confirmed by suit in the district court. He also offered the depositions of the clerk of the county court of Nacogdoches county to prove that said certificate had never been recommended for patent, which depositions, upon objections being made, were ruled out for informality.

There was a verdict and judgment for defendant and motion for new trial overruled.

J. A. Jones, for appellant.

Donley & Anderson, for appellee.

WHEELER, J.

The proof is clear that the defendant had been in the uninterrupted adverse possession of the land in controversy, cultivating and paying taxes upon it, and claiming under a deed recorded, for a period more than sufficient to give title under the 16th section of the statute of limitations. If the proof was made by competent means, it cannot be doubted that he was well entitled to the verdict and judgment. But it is objected to the judgment that the deed of the 24th of December, 1847, under which the defendant claimed, was not duly registered, because not probated for registry in accordance with law; and that the copy was erroneously admitted in evidence. The objection is that the certificate of probate does not state that the witness signed as a witness at the request of the grantor. We do not think it essential to the validity of the registry that it should so state. That would be a more formal compliance with the direction of the statute in making the certificate. But the statute does not prescribe the form of the certificate; but only that the officer taking the proof shall make a certificate thereof. All that can be required is that the certificate shall contain the substance of the proof; and if it contains all that is essential to prove the due execution of the deed, it must be deemed a substantial compliance with the requirement of the statute. It is not essential to the proof of the due execution of the instrument, that the witness should depose to the fact of his having signed at the request of the grantor. The presumption is that the subscribing witness did so sign, and the statement would add nothing to the legal effect of the certificate or the proof. In order to render the copy of a deed admissible in evidence under the statute (art. 745), it must have been admitted to record upon the requisite acknowledgment or proof; and the certificate of probate should afford evidence of the sufficiency of the proof. But if it does so substantially, though informally, that is all that ought to be required. The numerous adjudged cases upon the sufficiency of such certificates are collected in the note to Phillip's Evidence, to which we have been referred by counsel for the appellant. “All that is required (it is there said) in respect to the frame of these certificates is a substantial compliance with the law under which they are made. When substance is found, it is neither the duty nor inclination of courts to jeopardize titles, in any way depending upon them, by severe criticism upon their language.” Cow. and H. Notes, part 2, n. 254 to p. 247.

Thus, where a certificate of proof stated that A. B. appeared before the officer and made oath, etc., but did not say that he was a subscribing witness; yet it appearing on inspection of the deed that A. B. was one of the subscribing witnesses, it was held by the supreme court of Pennsylvania that the certificate was substantially good. 12 Serg. and R. 48. So in Jackson v. Gumaer, 2 Cow. 552, where it was objected to the certificate of the judge taking the acknowledgment, that it did not state, as it was insisted the statute required, that he knew the grantor to be “the person described in and who executed the deed,” the...