Holmes v. Coryell

• Decision Date: 16 February 1883
• Docket Number: Case No. 1553.
• Citation: 58 Tex. 680
• Parties: C. D. HOLMES v. J. R. CORYELL.
• Court: Texas Supreme Court

58 Tex. 680

C. D. HOLMES

v.J. R. CORYELL.

Case No. 1553.

Supreme Court of Texas.

Feb. 16, 1883.

ERROR from Galveston. Tried below before the Hon. Wm. H. Stewart.

On the 3d of September, 1874, J. R. Coryell filed this suit, trespass to try title, for the property in controversy, being block No. 6 of the Love and Grosbeck survey, or southwest quarter of out-lot No. 13 of present map of the city of Galveston.

April 27, 1875, plaintiff filed his affidavit of diligent search for certain original deeds in his chain of title, among others a deed for the property by Antonio Officier to J. Rump, dated July 13, 1843, and that the same were lost. Plaintiff filed certified copies of said deeds from the records of Galveston county, and gave defendant notice of the filing thereof.

This deed of Officier to Rump was proven for record by the only subscribing witness to it, and on trial the certified copy thereof was excluded by the court on the ground that a deed to be duly recorded must have two subscribing witnesses when it is proved for record by a witness. On appeal the commissioners of appeal held that this deed had been duly recorded, and in April, 1880, the mandate from the supreme court was filed in the district court.

Defendants below filed trial amendment, December 16, 1881, in lieu of former answer, and set up general demurrer, plea of not guilty, plea of three years' limitation, and that the deed of Antonio Officier to J. E. Rump was a forgery. They further alleged ownership of the property by inheritance as children and heirs of Antonio Officier and wife. Defendants filed, October 19, 1880, the affidavit of defendant Holmes, dated October 19, 1880, that he believed said deed (Officier to Rump) to be a forgery.

Plaintiff filed supplemental petition excepting to filing of affidavit of forgery, and further alleging value of rents and profits of the property to be $5,000.

The court overruled plaintiff's exceptions. Verdict for plaintiff for the property and $440 for rents.

Much evidence was introduced in this case touching the character of J. E. Rump, and of the subscribing witness Edmunds, but its detail here would, in view of that portion of it which is stated in the opinion, subserve no useful purpose.

The assignments of error were as follows:

First. The court erred in permitting Oscar Farish, the former clerk of the county court, to testify as to the existence of an original deed from Antonio Officier to J. E. Rump, by placing before him (the said Farish) the record book of the registration of deeds, and upon his reading and examination of the same, testifying that there must have been an original, as he made a true copy, but he had no personal recollection of the matter.

Second. The court erred in admitting in evidence the certified copy of the deed from Antonio Officier to J. E. Rump, without further proof of the execution and existence of the original than the testimony of the witness Farish, as shown in the first assignment of errors.

Third. The court erred in admitting in evidence the certified statement from the office of the comptroller, showing the condition of the property sued for, as to the assessment and payment of taxes on the same.

Fourth. The court erred on the trial of said cause in permitting the witness Oscar Farish to testify as to the contents of the records (the books of registration of deeds), the same not being in evidence in said cause.

Fifth. The court erred on the trial of said cause in admitting in evidence the certified copy of the deed of Antonio Officier to J. E. Rump, after the same had been impeached as a forgery in the manner prescribed by law.

Sixth. The court erred in instructing the jury that “a deed over thirty years old is evidence without any other proof.”

Seventh. The court erred in permitting the certificate from the office of the comptroller of the state of Texas to be read in evidence without the same having been previously filed in said cause, and notice thereof given to the defendants or their attorneys of record.

Wheeler & Rhodes, for plaintiffs in error.

I. There was no foundation laid for such secondary proof. The records themselves were not in evidence, and it was not competent for the witness to testify as to their contents. 1 Greenl., sec. 558, p. 689 (7th ed.); Dunn v. Choate, 4 Tex., 17, and authorities there cited. Again, having been impeached as a forgery, it was requisite to establish its execution as at common law.

II. The certified statement from the comptroller's office, as to rendition and payment of taxes, was not competent evidence, for the reason that it was not and did not purport to be a certified copy of any original or record of the said office, or of the office of the assessor or collector of Galveston county. Art. 2260, R. S., is a re-enactment of art. 3806, Pasch. Dig. See note in Paschal's Digest under this section. This court passed on the exact question in Highsmith v. The State, 25 Tex. Sup., 137. See also Allbright v. The Governor, 25 Tex., 694;Tinsley v. Rusk Co., 42 Tex., 46.

III. The charge of the court that “a deed thirty years old is evidence without any other proof,” was erroneous, and grossly so in its application to the facts of this case. The mere existence of a deed for more than thirty years, without any proof of accompanying possession, is not enough in any case to authorize it to be read in evidence as an ancient deed, without proof of its execution; besides, the rule, when correctly stated, could have no application to the certified copy of a deed attacked as a forgery. In the case of ancient deeds, possession is necessary to and the foundation of the presumption. The following is the rule as laid down in Bouvier's Institutes, vol. 3, p. 348: “Ancient deeds and wills more than thirty years old, if unblemished and unaltered, are said to prove themselves. The subscribing witnesses are presumed to be dead. But in the case of deeds, possession must have accompanied them.”“There must always be possession or other corroborating proofs.” Abbott's Trial Evidence, p. 708, § 25. For full discussion, Fairly v. Fairly, 38 Miss., 280;Ridly v. Johnson, 11 Barb. (N. Y.), 527;Homer v. Cilley, 14 N. H., 85;Bank of Middlebury v. Rutland, 33 Vt., 414;Dishazer v. Maitland, 12 Leigh (Va.), 524; Middleton v. Moss, 2 Nott & McC. (S. C.), 55. A full citation of authorities, in addition, can be found in United States Digest, first series, vol. 5, p. 743, § 5268.

Mann & Baker, for defendant in error.

I. A certified copy, on compliance with statute as to loss of original, is admitted as an original; affidavit of forgery requires proof of execution of the original. The testimony of Farish was full proof at common law of execution of the lost original, and this testimony unimpeached, uncontroverted, put the certified copy before the jury with all the force of the thirty year old original. R. S., art. 2257; Willis v. Lewis, 28 Tex., 187-189;Winn v. Paterson, 9 Pet., 663, 674.

II. It is the lapse of time that dispenses with proof of deed over thirty years old. Accompanying possession need not be shown, and it is sufficient to show corroborative circumstances raising a presumption of the genuineness of the deed. Stroud v. Springfield, 28 Tex., 663; Greenleaf on Ev. (13th ed.), vol. 1, §§ 144, 21; Winn v. Paterson, 9 Pet., 663, 664;Howard v. Colquhon, 28 Tex., 145; Bar v. Gratz, 4 W., 213, 221; Bouldin v. Massey, 7 W., 153, 155, 156.

III. At the time the certified copy was filed and notice given, it fixed right of introduction in evidence without proof unless affidavit of forgery was filed within one day after notice. The change of statute allowing affidavit of forgery within three days before trial did not affect rights fixed under previous statute. Pasch. Dig., art. 3716; R. S., art. 2257; Paschal v. Perez, 7 Tex., 365.

IV. The only issue being that of forgery, and the testimony of the party himself who made the affidavit of forgery showing clearly that he had no proper or sufficient ground for making the affidavit, and the evidence, as a whole, utterly failing to show any question as to the validity of the deed, the court will not reverse on questions of admissibility of evidence without which the result should have been the same, or as to abstract correctness of a portion of a charge when the verdict should have been the same without it. James v. Thompson, 14 Tex., 463;Sypert v. McCowen, 28 Tex., 639;Davis v. Loftin, 6 Tex., 489;Barrow v. Philleo, 14 Tex., 347;Autrey v. Cannon, 11 Tex., 110;Albright v. Corley, 40 Tex., 105.

STAYTON, ASSOCIATE JUSTICE.

Upon the former appeal it was decided by the commissioners of appeals, to whom the case was referred by agreement of parties, that the deed from Antonio Officier to J. E. Rump was properly admitted to record upon proof by the sole subscribing witness thereto of its execution, such authentication having been made before a proper officer and evidenced by a proper certificate.

This question having been so decided, it does not become necessary now to consider the question.

A certified copy of that deed having been tendered in evidence with affidavit accounting for the non-production of the original deed, and of other deeds which constituted links in the chain of the plaintiffs' title, this copy was objected to upon the sole ground that an affidavit had been filed by one of the defendants, stating that it was believed that the original deed from Officier to Rump was a forgery. No other objection seems to have been offered to the evidence.

That deed purported to have been executed on 13th July, 1843, and to have been proved for record by P. Edmunds, the only subscribing witness thereto, before Oscar Farish, clerk of the county court for Galveston county, on the 14th of July, 1843, on which day it was recorded in the records of deeds for that county, in Book C, p. 238. The objection to the certified copy of the deed having been made, the “plaintiffs then temporarily withdrew the offer of...