Dorn v. Best

• Decision Date: 01 January 1855
• Citation: 15 Tex. 62
• Parties: ROBERT DORN v. EMILY BEST AND OTHERS.
• Court: Texas Supreme Court

15 Tex. 62

ROBERT DORN

v.EMILY BEST AND OTHERS.

Supreme Court of Texas.

1855.

Under the act of 1846 (Hart. Dig. art. 2791), the proof of an instrument for record, when the witness states that he saw the grantor or person who executed the instrument subscribe the same, is not required to show that he signed the same as a witness at the request of the grantor; and the use of the word “execute” instead of “subscribe” is not material.

Where a party was prevented by sickness from being present at the trial, and his attorneys were ignorant of the cause of his absence, and a new trial is moved for on the ground of such absence, and to afford an opportunity for the introduction of additional evidence, a statement of which is given, it seems not to be a sufficient answer to such motion, that the additional evidence is merely cumulative.

Appeal from Caldwell. Action by Mortimer T. Dunham and his wife, Bathsheba Dunham, as guardians of Emily Best, John Best and Stephen Best, against the appellant, to annul a deed from Margaret Best, deceased, to the appellant, to recover the land embraced therein, being one thousand acres in Caldwell county. The plaintiffs claimed by virtue of a deed of gift from the said Margaret Best, dated September 10, 1851. The deed which they sought to annul was dated July 18, 1851, acknowledged by the said Margaret on the same day, and recorded on the 29th of May, 1852. The plaintiffs alleged that said deed had been delivered by the said Margaret to an agent to be delivered to the defendant on certain terms; that defendant had refused to accept the deed; that the said Margaret had thereupon revoked the power of her agent, and demanded the deed, of which the defendant had notice; and that after she had departed this life, the defendant had obtained said deed from the agent of the said Margaret. The agent was also made a party defendant. The defendant claimed the land under the deed, according to its purport; and in addition thereto, offered in evidence a title bond of the said Margaret, to him, for the same land, dated August 10, 1850, in pursuance of which he claimed that the deed was made. This is the bond referred to in the opinion of the court.

There was a verdict for the plaintiffs. Motion for a new trial on the ground of newly discovered evidence, and on the ground that the defendant had been confined by sickness, so that he was unable to attend the trial. The newly discovered evidence was what is usually denominated cumulative; but it clearly appeared from the affidavits that the defendant had been prevented by sickness from being present at the trial. The affidavits of the witnesses were produced. It also appeared from the affidavit of the defendant's attorney, that they did not know that the defendant was detained at home by sickness when they went to trial. Motion overruled.

J. Ireland, for appellant. We think the certificate was sufficient. When substance is found it is neither the duty nor inclination of courts to hazard title. (Jackson v. Stanton, 2 Cow. 552, 567;Nanty v. Bailey, 3 Dana, 118;McKeen v. Delaney, 5 Cranch, 32.)

The court surely erred in refusing a new trial.

Chandler & Anderson, for appellees.

I. To the first assignment of error we reply that the title bond was not authenticated properly, and under the law and the ruling of this court it could not be received in evidence. (Hart. Dig. art. 2781.)

II. A careful review of the grounds upon which defendant based his application for a new trial will plainly show that these grounds cannot be sustained by law or precedent. No good reason is shown for the absence of the testimony, and throughout the entire application the only reason given why the defendant could not have gone safely to trial was the fact that he was sick. He had attorneys at the court, and it does not follow by any means that the sickness of the party is ground for continuance.

LIPSCOMB, J.

The most material points presented by the record in this case, and those to which we propose confining our remarks, are, first, the recognition of the bond, or covenant, offered in evidence by the appellant, on the ground that it was not sufficiently authenticated by the clerk of the county court of Lavaca county to admit it to record in the ...