Hill v. Taylor

• Decision Date: 20 May 1890
• Citation: 14 S.W. 366
• Parties: HILL v. TAYLOR.
• Court: Texas Supreme Court

14 S.W. 366

HILL v. TAYLOR.

Supreme Court of Texas.

May 20, 1890.

Appeal from district court, Mandera county; THOMAS M. PASCHAL, Judge.

Elias Edmonds, for appellant. McLeary & King and Barnard & Green, for appellee.

ACKER, P. J.

H. W. Hill brought this suit against R. M. Taylor on the 8th day of September, 1886, in the usual form of trespass to try title to an undivided interest of 320 acres of land in two surveys described in the petition. The defendant answered by general denial, plea of not guilty, and the three, five, and ten years statutes of limitation. There was verdict for defendant, upon which judgment was rendered that plaintiff take nothing by his suit, and pay all costs, and he appealed. The plaintiff offered in evidence a certified copy from the records of Bexar county of a deed from Emeline Lawton, dated February 21, 1842, and filed for record in Bexar county on the 2d day of August, 1843, to which defendant objected upon the ground that the deed had not been properly acknowledged and certified for record by an officer authorized by the laws of the republic of Texas to take such acknowledgment. The objection was sustained, and that ruling is assigned as error.

It appears from the copy offered that the execution of the deed was acknowledged before and certified by "an associate judge of the sixth judicial district in the state of Maryland" on the day of its date, and that the vice-consul of the republic of Texas for the port of Baltimore attached to the deed his certificate of the official character of the officer who took and certified the acknowledgment. The statute of the republic of Texas providing for the acknowledgment of the execution without the republic of conveyances of land within the republic in force at the time the deed from Emeline Lawton purports to have been executed and acknowledged, was as follows: "If such grant, deed, or instrument executed abroad shall be acknowledged or proved by two subscribing witnesses before any circuit or supreme judge or chancellor of the United States of North America, certified by him, with the certificate of the chief magistrate of the nation as to the official character of him taking acknowledgment or probate, and the great seal of the United States thereto annexed; or if so acknowledged or proved before any judge of a superior court of record, or in any such court of any other nation or kingdom, and certified by such judge, or the record thereof exemplified, and either so counter-certified by the chief magistrate or sovereign of such other nation or kingdom under the great seal, or by the consul of this republic or minister resident there, the same shall be admitted to record, and shall be good and effectual, as aforesaid, from and after registration." Appellant contends that under this statute" deeds executed abroad should be acknowledged before a judge of a superior court and certified by the resident consul of the republic." The language of this law is very peculiar, and just what it means is difficult of ascertainment. It may, however, be conceded, as contended by appellant, that the expression "or if so acknowledged or proved before any judge of a superior court of record" includes the judges of the superior courts of the several American states, and yet the ruling of the trial court in excluding the instrument must be sustained, for there is nothing in the certificate or elsewhere in the record tending to show that the person who certified to the acknowledgment of the execution of the deed was a judge of a superior court of record. This court cannot judicially know that "an associate judge of the sixth judicial district in the state of Maryland" was a judge of a superior court of record on the 21st day of February, 1842.

Appellant insists that when a deed has been registered for 20 years the probate of its execution is conclusively presumed to be proper. We believe it to be settled that the benefits accruing from the registration of a deed are invariably dependent upon its proper registration. Without proper acknowledgment, and proper certificate of such acknowledgment, of the execution...