Salmon v. Huff

• Decision Date: 03 March 1891
• Citation: 15 S.W. 1047
• Parties: SALMON <I>et al.</I> v. HUFF <I>et al.</I>
• Court: Texas Supreme Court

15 S.W. 1047

SALMON et al. v. HUFF et al.

Supreme Court of Texas.

March 3, 1891.

On rehearing.

STAYTON, C. J.

A re-examination of this case shows that there was an assignment of error not considered in the former disposition of this case, which was necessary to its proper decision. It was necessary for defendants to show title from the common source, and, in attempting to do so, they were permitted to offer in evidence as a recorded instrument a deed from H. A. Jetton and wife to Thomas C. Thompson which was objected to on the ground that it had not been properly authenticated for record. The certificate of the officer to that deed was as follows: "State of Texas, county of Lavaca. Before me, J. H. Hays, J. P., and ex officio notary public in and for said county and state, on this day personally appeared H. A. Jettson, the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this 19th day of Dec., 1885. [Seal] J. H. HAYNES, J. P. and ex officio N. P. L. C." The statute declares that "no acknowledgment of any instrument of writing shall be taken, unless the officer taking it knows, or has satisfactory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making such acknowledgment is the individual who executed and is described in the instrument." Rev. St. art. 4309. The form given for certificates of acknowledgments shows that it was intended that the officer, when acting on his own knowledge of the identity of the person making the acknowledgment, should state the fact of his knowledge. Id. art. 4312. The fact that the person making the acknowledgment was known to the officer is one which must be evidenced by his certificate, and without this the authentication is not such as to entitle an instrument to record. The certificate need not be in the exact form prescribed by the statute, but must contain its substance. Watkins v. Hall, 57 Tex. 3; Mullins v. Weaver, Id. 7; Schramm v. Gentry, 63 Tex. 584; Little v. Weatherford, Id. 638. The certificate in question does not show that the person making the acknowledgment was known to the officer, and was for this reason insufficient to authorize the record of the deed to which it was attached. While adhering to the correctness of all the rulings made on questions considered in the former opinion...