Harvey v. Cummings

• Decision Date: 14 October 1887
• Citation: 5 S.W. 513
• Parties: HARVEY and others v. CUMMINGS and others.
• Court: Texas Supreme Court

Page 513

5 S.W. 513

HARVEY and others v. CUMMINGS and others.

Supreme Court of Texas.

October 14, 1887.

Error from district court, Henderson county.

James B. Goff, for plaintiff in error.

GAINES, J.

It would subserve no useful purpose to discuss the numerous assignments of error found in the record in this case. We shall therefore consider only such points raised by the brief of appellants as we deem necessary to a disposition of the case in this court, and in the district court upon another trial.

We find no error in the action of the court in admitting in evidence the testimony of Darius Lynch as to the decree of divorce in the case of Nancy Patterson v. Edward Patterson, rendered in the circuit court of Lawrence county, Alabama. The witness deposes that he had examined the records of that court, of which J. M. Doss, clerk, was custodian, and that he had found that "the following decree was rendered," and thereupon follows what purports to be a copy of a decree. We understand the witness to testify, in substance, that the copy set forth in his answers is a copy verified by him by his own personal examination. Such we take to be the effect of his language, and, if so, it was admissible as an examined copy according to the rules laid down by leading text writers and authoritative decisions of the courts. 1 Greenl. Ev. § 508; 1 Whart. Ev. § 94; Rolf v. Dart, 2 Taunt. 52; Hill v. Packard, 5 Wend. 387; Lynde v. Judd, 3 Day, 499.

We are also of opinion that the act of the legislature of Alabama giving effect to this decree was properly admitted in evidence. The main objection to its introduction seems to be that the certificate of the secretary of state, who attests the copy, states that it is "an exact transcript of an act of the general assembly, approved February 1, 1839, as the same appears on page 180 of the official published acts of that year, now on file in my office." The copy and the certificate are authenticated by the signature of the officer and the great seal of the state. There can be no doubt that this would have been sufficient if it had purported to be a copy of the original bill; and our statute makes the printed statute book of any state, which purports to have been published by authority, evidence in the courts of this state. Rev. St. art. 2250. Besides, it is held by some courts that, without the aid of any statutory enactment, the official publications of the acts of the legislature of another state should be received in evidence. 1 Whart. Ev. § 289, and authorities there cited. It is also provided by article 2251 of our Revised Statutes that a certified copy of any act from the printed statute book of another state, on file in the office of the secretary of state, shall be received in evidence thereof. Now, a copy of the act under the great seal of the state of Alabama would have been competent proof although the attestation had not shown whence the copy was taken; and the published acts themselves, as well as certified copy thereof by our own secretary of state, were admissible in evidence. Therefore we fail to see any good reason why the copy certified by the secretary of state of Alabama is not good, merely because his certificate shows that it is taken from the official published acts deposited in his office, and not from the original bill as enrolled and signed.

We think, however, the court erred in admitting in evidence the several deeds of W. J. Hamlett, J. A. Hathcock, and T. J. Layton to M. C. Cummings. Each of the deeds purports to be proved by a certificate of a subscribing witness. The clerk who took the proof seems to have copied literally the form laid down in the statute, (Rev. St. art. 4316;) so that he certifies, in effect, that the witness stated on oath that he saw the grantor subscribe the instrument or stated that the grantor acknowledged in his presence that he executed the same, etc. This will not do. The certificate leaves it doubtful which of the two statements was made by the witness under oath. Either would have been sufficient; but the certificate of proof should have been absolute as to the one or the other, and not in the alternative. See Monroe v. Arledge, 23 Tex. 480. We think, therefore, that the authentication was insufficient, and that the deeds should have been excluded.

The court did not err in excluding the deposition of the witness Phillip Claiborne. The deposition shows that the alleged transfer of the certificate from Brooks and wife to Barziza was in writing, and was still in existence. The written conveyances were the best evidence of the transaction, and it was not error to exclude the parol testimony of the witness concerning it.

We think, however, there was error in the charge of the court, and in order to make this clear it will be necessary to state briefly some of the facts of the case. The plaintiffs, who are appellants here, sued to recover a tract of land located by virtue of a certificate granted to Edward Patterson as the head of a family. About the year 1828, Edward Patterson married, in Lawrence county, Alabama, Nancy Jennings, who was a widow, and had one child, then living, by her deceased husband. That child was A. J. Jennings, who is one of the plaintiffs in this suit. Edward Patterson came to Texas, and participated in the war of independence. His wife did not accompany him, but remained in Alabama, where she obtained a decree of divorce from him, which was perfected by an act of the legislature of that state in 1839. It is to be presumed from the language of the act that the law required both the decree of a court and the legislative sanction. The certificate issued to Patterson in 1838. He married a second wife, named Alethea, in the fall of 1840; died in 1841. Nancy Patterson had one child by Edward Patterson, who died about 1846. His name was William F. Patterson. She married again about 1841, and left as the issue of that marriage, Sallie J. Harvey, wife of Henry F. Harvey, who are the other two plaintiffs in this suit. Unless Nancy Patterson was divested of her right to the certificate by the decree of divorce, it is evident that she was entitled to one-half of the certificate.

There is no proof in the record that Edward Patterson ever claimed to have any other wife until his second marriage in 1840, long after the certificate issued. The certificate being personal...