Newsom v. Langford

• Citation: 174 S.W. 1036
• Decision Date: 27 February 1915
• Docket Number: (No. 725.)
• Parties: NEWSOM v. LANGFORD.
• Court: Court of Appeals of Texas

174 S.W. 1036

NEWSOM v. LANGFORD.

(No. 725.)

Court of Civil Appeals of Texas. Amarillo.

February 27, 1915.

On Motion for Rehearing, March 27, 1915.

Appeal from District Court, Hall County; J. A. Nabers, Judge.

Action by W. L. Langford against J. C. Newsom. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Alexander, Power & Ridgway, of Ft. Worth, and S. A. Bryant, of Memphis, for appellant. Gilbert C. Storms, of Kerrville, and H. D. Spencer, of Memphis, for appellee.

HENDRICKS, J.

This cause arose as follows: On the 20th day of August, 1910, Thomas H. Thomas, a freedman of the Seminole Tribe of Indians of Oklahoma, and an allottee of land under the United States laws, conveyed to W. N. Stokes his allotment situated in Seminole county, Okl. J. C. Newsom, of Hall county, Tex., obtained the purported title of said land through mesne conveyances, and upon the 18th day of October, 1911, executed a general warranty deed to the appellee, W. L. Langford, and the latter, alleging a total failure of title, instituted this suit against the appellant upon the general warranty; also alleging certain fraudulent representations, which, on account of the action of the trial judge with reference to the condition of the title, became immaterial upon this appeal. The appellant transferred a certain stock of dry goods in consideration of the deed to him by Newsom, of the land; and relative to that part of the cause of action upon the warranty, the age of the freedman, Thomas H. Thomas, the allottee of the land, and the original grantor of the same, became a material subject of inquiry.

For the purpose of proving the age and minority of Thomas H. Thomas, the following document was permitted in evidence by the trial court:

                    "Department of the Interior
                  "Commissioner of the Five Civilized Tribes
                      "Seminole Roll Freedman
                No.       Name.          Age.   Sex. Blood.    Year   Tribal Enrollment
                                                                            Band
                2597   Thomas, Thos. H.   7         M          1897      Dosar Barkus
                

"No. 402. Census card No. 803.

"This is to certify that I am the officer having custody of the approved roll of Seminole freedmen, and that the above and foregoing is a true and correct copy of that portion of said roll appearing at No. 2597, enrolled as of July, 1898, P. O., Sasakwa, Oklahoma.

                                       "J. G. Wright
                

"Commissioner to the Five Civilized Tribes.

"C. H. Drewe, Clerk,

"Muskogee, Oklahoma, December 22, 1913."

The appellant complains that the purported certified copy was not authenticated, as required by law, to admit it in evidence, that said copy was secondary evidence, and that the original roll would have been the better testimony. Act Cong. May 27, 1908, c. 199 (35 Statutes at Large, p. 312) § 3, provides:

"That the rolls of citizenship and of freedmen of the five civilized tribes approved by the Secretary of the Interior shall be conclusive evidence as to the quantum of Indian blood of any enrolled citizen or freedman of said tribes and of no other persons to determine questions arising under this act and the enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman."

The principal contention of appellant is that the document lacks an official seal; that the enrollment records indicated in the congressional act being conclusive evidence of the age of freedmen is a new rule of evidence, and that a party seeking the advantage of said statute should be held to the strictest compliance with the statutory rule of evidence; that this particular statute, referable to the question of age, makes the enrollment records, and not copies of the same, the conclusive evidence as to the age of such persons; and that, as to certified copies, we are remitted to either section 882 of the federal statutes (volume 3, Annotated Federal Statutes, p. 26) or to section 3 of an act of Congress of July 26, 1892 (volume 3, Annotated Federal Statutes, p. 338).

The former section (882) provides that:

"Copies of any books, records, papers or documents in any of the * * * departments, authenticated under the seals of such departments, respectively, shall be admitted in evidence equally with the originals thereof."

Section 3 provides for certified copies of any records belonging to the files of the Commissioner of Indian Affairs, authenticated by the seal and certified to by such officer, or some officer acting in his stead, that such copies shall be evidence equally with the originals.

We think the contention of appellant is sound, and that the court erred in admitting the particular document in evidence. We are not referred to any statute, except the general statutes mentioned, relative to the introduction of certified copies as evidence which would vitalize a purported copy of the Commissioner and elevate the same to the dignity of original testimony. Without proper authentication, unless there is some statute that would make a copy, without more, under the purported signature of the Commissioner to the Five Civilized Tribes, permissible evidence, equal to the original records, we are unable to understand how the same could rise to the dignity of original testimony. The seal in this instance, whichever statute would apply, forms a part of the authentication. In the case of Smith v. U. S., 5 Pet. 300, 8 L. Ed. 133, Mr. Justice McLean used the following language:

"It is the certificate of the auditor and the seal of the department which make the transcript evidence. If either be omitted, whatever the transcript may purport upon its face, it is not evidence. Where copies are made evidence by statute, the mode of authentication required must be strictly pursued. The Legislature may establish new rules of evidence in derogation of the common law, but the judicial power is limited to the rule laid down."

He further said:

"The objection that the signature of the Secretary of the Treasury was signed by his chief clerk, seems not to be important. It is the seal which authenticates the transcript, and not the signature of the Secretary."

While the result of the case cited and quoted from by us is a little difficult to understand, however, the court had under consideration an act which required a certain transcript to be certified to by certain officers, "and authenticated under the seal of the department." There was a division of the court on certain questions, and, though the language used may not, strictly speaking, be a part of the decision of the court, we think the enunciation is a correct principle.

Section 906 of the Revised Statutes of the United States, which provides for the exemplification of the records of other states, not pertaining to a court, prescribes that the same shall be admitted in evidence in any state or territory by the attestation of the keeper of the records, and the seal of his office annexed, together with a certificate of the Secretary of State that said attestation is in due form and by the proper officer.

In the case of Morton v. Smith, 44 S. W. 683, where certain documents were certified to by the official custodian of the records in a foreign state, but without any seal to the certificate, Chief Justice James remarked that he was unable to conceive upon what principle the same were admitted. It is true that there is a scarcity of authority directly applicable to the particular question involved, except that there are several authorities where a seal by the proper officer has been omitted, relative to a certification and authentication of a foreign judgment under the full faith and credit clause of the federal law, holding that the seal is indispensable to a proper authentication. As to the seal, the case of Milwaukee Gold Extraction Co. v. Gordon, 37 Mont. 209, 95 Pac. 995, is to the same effect.

Appellee cites the case of Starr v. U. S., 164 U. S. 627, 17 Sup. Ct. 223, 41 L. Ed. 577, wherein the Supreme Court of the United States spoke of a certain warrant of arrest as being admissible in testimony without the seal of the United States Commissioner. The question of the lack of a seal was really not involved in that case, but was involved in the case of Starr v. U. S., 153 U. S. 614, 14 Sup. Ct. 919, 38 L. Ed. 841, where the conviction in the United States court of the same defendant was reversed. In the latter cause the Supreme Court of the United States discussed the question of warrants relative to seals thereupon, making an extended research into the common law upon that subject, and held in that cause that an objection addressed solely to the want of the seal was untenable. A reading of that case exhibits the inapplicability of the principle applied by the Supreme Court to the character of document questioned in this record. However, appellant cites the case of Belford-Clark & Co. v. Scribner, 144 U. S. 488, 12 Sup. Ct. 734, 36 L. Ed. 520, wherein a copy of a certain letter, referable to a certain copyright, certified to as having been received by the Librarian of Congress, was declared by the Supreme Court of the United States as competent evidence, although the certificate of the officer was not under seal. The judgment of the trial court in that cause, under review by the Supreme Court of the United States, was based entirely, if we interpret the decision correctly, upon the previous findings of the referee or master, without any exceptions to the same in the record under consideration by the Supreme Court, and without assignments based upon exceptions. The court did say:

"We are of opinion that the certificate of the Librarian of Congress, * * * printed in the record, * * * was competent evidence, although the certificate was not under seal."

There were other documents under the hand and seal of the Librarian introduced in that cause relative to the copyright, which we presume were the same signature as the one...