Russell v. Oliver

• Citation: 14 S.W. 264
• Parties: RUSSELL <I>et al.</I> v. OLIVER.
• Decision Date: 17 June 1890
• Court: Texas Supreme Court

14 S.W. 264

RUSSELL et al. v. OLIVER.

Supreme Court of Texas.

June 17, 1890.

Commissioners' decision. Appeal from district court, McLennan county.

Clark, Dyer & Bollinger, for appellants. Anderson, Flint & Anderson, for appellee.

COLLARD, J.

Suit by appellee, Thomas J. Oliver, in form of trespass to try title, against Charles Russell and S. M. Swenson, for one undivided half of 450 acres of land, patented 28th April, 1875, to J. B. Tong by virtue of his donation warrant No. 539. Defendants pleaded not guilty. Plaintiff read in evidence the patent to Tong; certified copy of the will of J. B. Tong, in favor of his wife, Rhoda Tong, dated 16th November, 1843, from the records of Montgomery county, Tex., witnessed by John McCreary, Thomas W. Hoy, and Harvey N. Spillers; proof that J. B. Tong was dead; that he left a wife, Rhoda Tong, surviving him, and no children; that she married Matthew Yarbery; that she died without issue in 1853, leaving surviving her her husband, who also died about 23d March, 1885. It was not shown whether she had any brothers or sisters or their descendants at her death. Plaintiffs also read in evidence a deed for the land by Matthew Yarbro, reciting that "he was the surviving husband and sole heir of Rhoda Yarbro, formerly Rhoda Tong, deceased, to plaintiff, Thomas J. Oliver, to the land in controversy, dated 12th January, 1884. Defendant Swenson deraigned title—(1) By deed from W. H. Tong, as the only surviving heir of J. B. Tong, deceased, to John Stringer on an expressed consideration of $2,000 paid, dated December 25, 1877, duly recorded in McLennan county, March 20, 1884. (2) Deed dated 31st day of October, 1878, by Mary E. Wilson, her husband, William M. Wilson, and H. Dignan, the said Mary E. Wilson and H. Dignan claiming to be nieces of John B. Tong, children of his sister Elizabeth Gouch, formerly Tong, to John Stringer; the deed being in the nature of a release upon consideration of one dollar; recorded the 4th day of January, 1879. (3) Deed of John Stringer to defendant Swenson, dated 23d day of February, 1879, upon an expressed consideration of $2,000 paid, recorded in Montgomery county, Tex. The certified copy of J. B. Tong's will from the probate records of Montgomery, where it was probated, shows that the oath of the witnesses was made before "W. H. Fowler, Clk. P. C. M. C." The proof attached to the will began in the following form: "Republic of Texas, county of Montgomery. Probate court, Mch. term, 1844. Came personally into open court Thomas W. Hoy and Harvey N. Spillers, witnesses to the will, who, under oath, make proof of it." The affidavit is subscribed by them. The jurat of the officer taking the proof is as follows: "Sworn to and subscribed before me 25th March, 1844. W. H. FOWLER, Clk. P. C. M. C." The first assignment of error is: The court erred in admitting in evidence the certified copy of the will of John B. Tong, for the reasons urged against it as shown in bill of exceptions. The objections were "because the proof taken of the witnesses T. W. Hoy and Harvey N. Spillers, purporting to be subscribing witnesses, was not shown to be taken before any person authorized to take the oath of said parties as witnesses, the same appearing to have been sworn to before W. H. Fowler, who styled himself `Clk. P. C. M. C.,' without attesting his act by any seal, and for the further reason that the county clerk of Montgomery county, Tex., was the only person, under the law then in force, who could take the proof of the subscribing witnesses, which was not shown to have been done." The affidavit began as follows: "Republic of Texas, county of Montgomery. Probate court, Mch. term, 1844. Came personally into open court Thomas W. Hoy and Harvey N. Spillers, who are well known to the court, who being duly sworn under oath, depose," etc. The jurat is as follows: "Sworn to and subscribed before me 25th March, 1844. W. H. FOWLER, Clk. P. C. M. C. THOMAS W. HOY. HARVEY N. SPILLERS." At the time the will was probated the chief justice of the county court was made and styled the "Judge of Probate," (Hart. Dig. art. 252,) and the clerk of the county court was made and styled "Clerk of the Probate Court," (Id. art. 257.) The official capacity of the officer who swore the witnesses to the proof of the will is sufficiently designated by the abbreviation and the letters following his signature. The affidavit was taken in open probate court, and it will be inferred that the jurat was made by the clerk of the probate court of Montgomery county, as indicated by the letters. Discussing this subject Justice MOORE in the case of McDonald v. Morgan, 27 Tex. 506, says: "From the foundation of our government it has, and continues to be, the general habit and custom with such officers, as well as those of almost every grade, to use parts of words or letters to indicate the official capacity in which they are acting." We find no authority, and none has been cited by the learned counsel for appellants, that the act of the clerk swearing witnesses or taking affidavits in open court in a judicial proceeding must be authenticated by the seal of the court. The law now requires, as it did in 1848, that where the proof of the execution of a will is made by affidavit in open court it should be subscribed by the witnesses, filed, and recorded by the clerk. Rev. St. arts. 1847, 1853; Pasch. Dig. art. 1262. All the testimony taken in the proof of a will in open court must be subscribed by the witnesses in open court, filed and recorded by the clerk, but there is, and has never been, that we are able to find, a requirement that such testimony taken by affidavit or otherwise must be attested by the seal of the court.

Defendants filed a supplemental motion for a new trial based upon newly-discovered evidence, which was overruled by the court. Error is assigned upon the ruling. The newly-discovered evidence is: (1) A transfer of the certificate No. 539 (by virtue of which the land in controversy was located) by John B. Tong, the original grantee, to ...