Holliday v. Cromwell

• Decision Date: 01 January 1862
• Citation: Holliday v. Cromwell, 26 Tex. 188 (Tex. 1862)
• Parties: THOMAS HOLLIDAY v. A. H. CROMWELL AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 188

THOMAS HOLLIDAY

v.A. H. CROMWELL AND OTHERS.

Supreme Court of Texas.

1862.

Where a deed was executed before a judge of the first instance on the 25th day of October, 1834, and recorded in the office of the clerk of the county court of Refugio county on the 2d day of June, 1841, without having been proven in the manner provided for by the laws in force at the time of its registration: Held, that the deed was not properly admitted to record, and that it could not be proven by the production of a certified copy under the 469th article of the Digest of Oldham & White.

The laws in force at that time in reference to the requirements of acknowledgment and proof of the execution of deeds, before admitting them to record, cited and discussed.

The rulings of the court below and the facts of the case ought to appear by the record, and should not be left to rest upon the agreement of counsel outside of the record.

APPEAL from Victoria.Tried below before the Hon. Fielding Jones.

Tresspass to try title to two leagues of land in Victoria county, brought by Thomas Holliday, the appellant, against Alexander H. Cromwell and others, the appellees.

On the trial, the plaintiff read in evidence a certified translation from the general land office of the original grant of the two leagues to Santiago and Lazaro Serna and a chain of title from Santiago.The first link in this chain is a deed from Santiago Serna to John Sutherland, dated February 28, 1840, and recorded in Victoria county, where the land was then situated, May 24, 1850, and in Refugio countySeptember 13, 1850.

The defendants also claim under said Santiago Serna, who, as they alleged, sold the land in controversy to Joshua Davis on the 25th day of October, 1834.As evidence of the sale from Serna to Davis, the defendants offered a copy of the act of sale taken from the record of deeds in Refugio county, certified as such by the clerk.The act of sale, according to this transcript from the record, appears to have been passed before the judge of the first instance in the village of Refugio, and to have been admitted to record, without proof, in the office of the clerk of the county court, on the 2d day of June, 1841.The plaintiff objected to the introduction of this copy in evidence, because, 1st.It was not the best evidence. 2d.Because the existence of the original had not been proven, nor its absence accounted for, so as to lay the necessary foundation for the introduction of secondary evidence. 3d.It showed upon its face that the original had not been recorded.These objections were overruled and the plaintiff excepted.Verdict for defendants.Judgment rendered accordingly.Motion for new trial overruled and plaintiff below appealed.

An agreement, signed by counsel, was filed among the papers, reciting various clerical errors made by the clerk below in making up the record.

Glass & Phillips, Jr., for appellants.II.The second assignment of errors involves the plaintiff's objections to the transcript, from the records of Refugio county, of the conveyance from Serna to Davis.

This transcript is neither a protocol or testimonio, and not being an original document, is not the best evidence of the act of sale.No proof was made of the existence of the original; nor was the absence of the original accounted for, except by the affidavit of one of the defendants, which, on its face, plainly shows that he, at least, never positively knew of the actual existence of the original, although he swears, in the terms of the statute, that it is lost or destroyed.

An heir-at-law, in order to establish title in his ancestor, cannot, without accounting for the non-production of the original, give in evidence a certified copy of a deed to the ancestor from the town records.Cunningham v. Tracy, 1 Conn. 252;Talcott v. Goodwin, 3 Day, 264.

Nor does this transcript, upon its face, purport to be a certified copy of a duly registered deed.This transcript is made out on the 23d August, 1856, by P. Shelly, clerk of the county court of Refugio county, who certifies “that the foregoing instruments of writing are true and correct copies of those on record in my office, as taken from record book B, pages 128, 129 and 130 of deeds.”How these documents got upon the record in this office is of course not shown, nor attempted to be shown by this clerk.He only gives copies of the records as he finds them in his book of deeds, and certifies that they are “true and correct copies.”

We cannot, therefore, presume that anything which was in the record book, connected with these documents, was left out of this transcript.The certificate of John W. B. McFarlane, who was the clerk of the county court of Refugio county on June 2, 1841, is included therein, and that shows us upon what ground the original instruments were placed upon the record.His certificate is, “The foregoing deeds were presented to me this day and thereupon admitted.”

The words “ thereupon admitted” plainly indicated that he regarded “““presentation” as the only prerequisite to registration.But the counsel for the appellee not only contends that there may have been a proper certificate upon the original, but that the proper proof may have been taken and not certified.He also argues that the officer must be presumed to have known and done his duty, and quotes the case of Paschal v. Perez, 7 Tex. 357, in support of his positions.

In that caseChief Justice Hemphill said that it was “probable” that the clerk had admitted the document to record upon proof of the signature of the signer.This he infers from a certain construction of section 38 of the registry act of 1836, arising from the obscurities of the different parts of that act.He did not, however, assert that such was the necessary legal presumption to be deduced from the fact of any instrument being found upon the record.But his remark was, at most, a mere obiter dictum, as the case was decided upon other grounds.

The remarks of the chief justice seem also to apply to a different class of instruments from the one here in question, and particularly to such as have no subscribing witnesses.In the case at bar, however, the act of sale purports to have been passed before a judge of the first instance, and decree No. 275 of the laws of Coahuila and Texas, passed April 18, 1834, authorizing judges to act in the place of notaries, required them also to act with assisting witnesses, which was done by this judge, as the names of the witnesses are signed to the document.

Section 35, of the act of 1836, provides that the proof or acknowledgment which entitles the document to registry, shall be certified by the recorder and form part of the record.Hart.Dig. art. 2752.

There is nothing in section 38 to negative the requirements of section 35, except that portion thereof which declares “the certificate of any county judge” sufficient.

Whatever effect the act of 1836 might have had in the absence of any certificate by the clerk, it certainly would not warrant the presumption that the certificate when given was false, or even that it contained an imperfect statement of the actual fact which it purported to certify.

The act of 1839, however, also required a certificate of the proof or acknowledgment to be made upon the instrument to be recorded by the proper officer, “and become a part of the record.”Hart.Dig. art....