Magee v. Paul

• Decision Date: 08 March 1913
• Citation: 159 S.W. 325
• Parties: MAGEE et al. v. PAUL et al.
• Court: Texas Court of Appeals

159 S.W. 325

MAGEE et al. v. PAUL et al.

Court of Civil Appeals of Texas. Amarillo.

March 8, 1913.

On Rehearing, May 3, 1913.

On Motion for Rehearing, May 10, 1913.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Trespass to try title by J. C. Paul and others against J. B. Magee and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

W. F. Schenck, of Lubbock, and N. Frank Faulk, of Athens, and Wm. J. Berne, of Ft. Worth, for appellants. W. H. Bledsoe, of Lubbock, and Madden, Trulove & Kimbrough, of Amarillo, for appellees.

HALL, J.

This suit was brought by appellee Paul, in trespass to try title, to recover a section of land in Lubbock county. There was a trial before the court, without a jury, resulting in a judgment for plaintiff for the entire section. Appellee Paul, plaintiff in the court below, claims the land under the following evidence of title: (1) An original land certificate, No. 16, issued to John H. Gibson and claimed to have been transferred by Gibson to one Parry; (2) an alleged transfer of said original certificate by Parry to one Albert; (3) the alleged issuance and delivery to Albert by the Land Commissioner of duplicate certificate 16; (4) an alleged transfer of said duplicate certificate by Albert to one Daugherty; (5) deed from Daugherty to one Ames; (6) certified copy of alleged will of Ames, conveying said land to the Essex Institute and probate of said will; (7) deed from the Essex Institute conveying said land to one Brookhouse; (8) deed from Brookhouse to appellee Paul. It appears that the land in controversy was located by virtue of original certificate No. 16, which is claimed to have been lost, and a duplicate certificate, No. 35/52, John H. Gibson, grantee, was issued July 5, 1878. It appears that a survey was made by virtue of said certificate on May 23, 1879. The patent was issued May 5, 1882, to "John H. Gibson, his heirs or assigns," reciting that the land was surveyed by virtue of the above-named duplicate certificate. Loss of the original certificate, No. 16, was attempted to be proven by certified copy from the General Land Office by ex parte affidavits of Stephen Albert, who it is claimed was the owner of the original certificate at the time of its loss, and of J. L. A. Thomas, who was in charge of the express car when it is claimed the car was robbed and the certificate stolen. In connection with these, the certified copy from the Land Office of an ex parte affidavit made by W. E. Parry was also offered, for the purpose of showing that Stephen Albert was the owner of the original certificate and that a transfer thereof was attached at the time affiant sold and delivered the same to Albert. A certified copy of the notice, as published in a Tarrant county paper, under the provisions of the law, reciting the loss of the certificate, and a certified copy of an affidavit made by the publisher of said paper, were also admitted. All of the above affidavits and documents were archives of the General Land Office at Austin, as shown by the certificate of the Commissioner of the General Land Office, thereto attached to the copies. W. E. Parry, one of the affiants, testified by deposition that he owned original certificate No. 16; that he acquired the same in due course of trade, and, when he bought it, it was indorsed in blank; that he sold the same to Stephen Albert, in 1877; that Albert paid him value therefor; and that he delivered the original certificate to Albert with the transfer thereto attached. Appellee Paul testified that he and his coplaintiff, Rogers, bought the land in controversy in 1905; that at the time he purchased the same the original patent to said land was delivered to him by his grantor; that he had an abstract of title to same, passed upon by his attorneys; that he then believed they would give him a perfect title to the land; and that he did not know that any one else was asserting an adverse title until a day or two before the filing of this suit; that, under his claim of title, he had been paying taxes ever since the date of his purchase. B. C. Gibson, one of the appellants, and a son of John H. Gibson, testified by deposition that he knew nothing of the land until the matter was called to his attention by his attorneys.

The first five assignments of error assail the action of the court in permitting the introduction of the ex parte affidavit of Parry, in which Parry swears that when he "sold and delivered to Edward White and Stephen Albert of New Albany, Ind., the following Texas land scrip, numbered as follows, Nos. 16, 941, 1,542, 258, 83, 84, 85, 86, and 88, making nine certificates of land scrip, that the transfers were each attached to each piece of land scrip for 640 acres each and said transfers were properly made and acknowledged, and the said W. E. Parry further deposes and says that not having any memoranda to refresh his memory, as to the exact number, yet to the best of his recollection, knowledge, and belief the numbers above given are correct." This was signed and sworn to before a notary of Dallas county, on the 3d day of July, 1878. The admission of this certified copy of affidavit as evidence was objected to by appellants, upon the ground that it was secondary and hearsay evidence of the alleged facts set out therein; that the certified copy was not admissible in evidence under the statute, which admits in evidence archives of the General Land Office, because the original affidavit, if offered in evidence, would be secondary evidence of the alleged facts, set out therein.

The general rule is that ex parte affidavits, when offered in evidence, are inadmissible and subject to the objections urged by appellant. In Elliott on Evidence, § 506, it is said that this character of testimony is held to be hearsay, and, because of a want of opportunity to cross-examine the affiant, has usually been excluded. In Houston v. Blythe, 60 Tex. 511, our Supreme Court uses this language: "The objection contained in the seventh bill of exceptions to the introduction in evidence of the affidavit of Amory, attached to the testimony, made before Judge Chas. S. Taylor, was well taken. Amory, if alive, could have been produced and examined as the other witnesses in the case were, but his affidavit in question was ex parte, and was not calculated to shed any proper light on the issue, but might be very likely to prejudice, in the eyes of the jury, the rights of the plaintiffs in error." In this connection, the record shows that the witness Parry was alive when this case was being prepared for trial and that both sides took his deposition. In Halliday v. Lambright, 29 Tex. Civ. App. 230, 68 S. W. 715, Neill, Justice, said: "Nor did the court err in refusing to give at appellant's request a special instruction to the effect that, in deciding as to whether or not the mother of W. P. Dubose had a sister as claimed by plaintiffs, the jury could take into consideration the affidavit of W. H. Mell, to the effect that he was the nearest blood relative and heir of Mary Ann Mell, the mother of W. P. Dubose, and given said affidavit such weight as they, under all the circumstances, considered it entitled to. We can conceive no rule of evidence which would authorize the jury to consider the ex parte affidavit, with which plaintiffs were in no way connected, of a third party, as evidence against them for any purpose."

Appellee insists, however, that the affidavit, although ex parte, and while it may be secondary and hearsay, is admissible as an archive of the Land Office and as an ancient instrument. If such testimony could be admitted at all, it must be by force of the statutes making certified copies from the Land Office of the archives of said office admissible. Article 2306, Sayles' Civil Statutes, is: "Copies of the records of all public officers and courts of this state, certified to under the hand and seal (if there be one) of the lawful possessor of such records, shall be admitted as evidence in all cases where the records themselves would be admissible." Article 2308, Id., provides that the Secretary of State, Attorney General, Commissioner of the General Land Office, etc., shall furnish any person, who may apply for the same, with a copy of any paper, document, or record in their respective offices, certifying to any fact or facts contained in the papers, documents, or record of their offices, to any person applying for the same; and the article further provides that the same shall be received in evidence in all cases in which the originals would be evidence.

These articles of the statute have been construed by our Supreme Court in several cases. In Gaither v. Hamrick, 69 Tex. 97, 6 S. W. 621, it is said: "But said articles provide that the facts certified by the Commissioner shall be in evidence in all cases in which the originals would be; thus evidencing no intention to extend the rules of evidence, so as to make evidence admissible that was before inadmissible under the rules of common law. The statute providing the means of authenticating copies of documents in all cases, when it was not for any reason proper or convenient to take the original out of the office, and also for authenticating copies of any indorsement in any book or file upon a paper, or any like fact, pertaining to a document or record in such office."

In Holmes v. Anderson, 59 Tex. 482, the court uses this language: "In view of another trial, it is proper to say that a certified copy of a land certificate, made by the Commissioner of the General Land Office, the original being on file in his office, as a link in the chain of title to a survey of land which has been properly returned to that office, is admissible, and is subject only to such objections as could be made to the original were it produced."

In Lott et al. v. King, 79 Tex. 292, 15 S. W. 231, our Supreme Court held that the affidavit of Barnes Parker, filed for the...