Jordan v. Robson

• Citation: 27 Tex. 612
• Parties: HUGH JORDAN AND ANOTHER v. ROBERT ROBSON.
• Decision Date: 01 January 1864
• Court: Texas Supreme Court

27 Tex. 612

HUGH JORDAN AND ANOTHER

v.ROBERT ROBSON.

Supreme Court of Texas.

1864.

See this case for a showing for a first continuance, held to have been improperly overruled, the circumstances excusing the want of the ordinary statutory diligence.

The only purpose and object of the statutory provision (O. & W. Dig., art. 469), authorizing the admission in evidence of legally recorded instruments without proof of their execution, unless the opposite party file, within one day after notice, an affidavit impeaching them, was to relieve parties from the burden of proving the execution of such deeds as at common law, unless so impeached by affidavit.

The failure to file the affidavit impeaching such a deed gives to the deed the same force, and no more, as if its execution had been testified to by the subscribing witnesses; but does not estop or preclude the opposing party from disproving the execution of the deed, or from showing that it was a forgery.

If the party offering the deed should be taken by surprise, in consequence of the failure of his opponent to file an affidavit impeaching it, the court can afford a remedy, in proper cases, by the power of granting new trials.

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

Trespass to try title to a half of a league of land in Calhoun county, brought by Robson, the appellee, against Hugh Jordan, on the 22d of July, 1857.

The cause was continued for service at the fall term, 1857, and the two next ensuing terms. At the spring term, 1859, George W. Garrett was, on motion, made a party defendant with leave to defend. The defendant pleaded the general issue and the limitation of five years, and suggested improvements in good faith.

At the fall term, 1859, the cause was continued at the instance of the plaintiff. At the spring term, 1860, a trial was had, resulting in verdict and judgment for the defendant, which, by agreement of the parties, were set aside and the cause reinstated on the docket, at the cost of the plaintiff up to the date of agreement.

At the fall term, 1860, the defendant Garrett made his affidavit for the first continuance asked by the defendants, which affidavit was as follows: “I, Geo. W. Garrett, one of the defendants in the above entitled cause, being sworn, state on oath that the defendants cannot safely go to trial at the present term of the court for want of testimony which is material to their defense: that on the 4th day of October, 1859, the plaintiff filed in this cause as evidence of his title two deeds--one dated June 4, 1855, by which John Low, by his attorney, R. Robson (the plaintiff), conveys to one W. G. Banks the land claimed by this defendant, for the consideration of one thousand dollars; the other deed is dated June 9, 1855, by which the said Banks, for the consideration of one thousand dollars, conveys the same land to Robert Robson. Also, a deed purporting to be from John Low to the plaintiff for the land claimed by this defendant, dated April 2, 1857, which last named deed was not recorded; that at the last May term of this court, there was a trial of this cause, and the plaintiff took a nonsuit, and the cause was reinstated on the docket by consent of this defendant; that since the said trial of said cause, he has become satisfied, and so charges the fact to be, from the best information which he can obtain, that the said deed dated 2d April, 1857, was not executed by John Low, by whom the plaintiff claims it to have been executed; that the party who held a deed for said land and from whom the plaintiff claims to have derived title, was a Scotchman, and would have been, in 1857, far advanced in years; that the party who claims to have executed said deed describes himself as a citizen of Prince William county. Virginia; that so soon as this defendant became aware of the fact that said deed was...