Sample v. Irwin

• Decision Date: 01 January 1876
• Citation: 45 Tex. 567
• Parties: HENRY SAMPLE v. A. D. IRWIN AND WIFE.
• Court: Texas Supreme Court

45 Tex. 567

HENRY SAMPLE

v.A. D. IRWIN AND WIFE.

Supreme Court of Texas.

1876.

APPEAL from Washington. Tried below before the Hon. I. B. McFarland.

This was an action of trespass to try title, brought by Irwin and wife against Henry Sample. Both parties claimed title to the land in controversy under one E. S. Woodford. The appellees claimed under a deed from Woodford to Eliza McFadin, dated on the 5th of March, 1862, and duly recorded on the 5th of June, 1868, and a deed from Eliza McFadin and her husband, N. A. McFadin, to appellee, Mrs. Irwin, dated May 4, 1867, and duly recorded on the 5th of June, 1868, both of which were read in evidence without objection. The consideration of the conveyance from Woodford to McFadin was $250, and of the conveyance from McFadin to Mrs. Irwin $1,500. This amount was paid Mrs. Irwin as follows: McFadin and wife were indebted to Irwin and wife in the sum of $500 or $600; the balance of the purchase-money was $1,000, given to Mrs. Irwin by her father, and by her loaned to her brother, and paid at the time of the purchase to McFadin and wife by her brother.

The defendant claimed title under a judgment in favor of P. J. & R. Willis, surviving partners, etc., v. E. S. Woodford, rendered on the 23d of April, 1870, and an execution sale thereunder, on the 6th of September, 1870. The suit in which this judgment was rendered was based upon a note of Woodford to McIlhenny, Willis & Bro., dated December 2, 1861, and alleged to have been secured by a deed of trust of the same date, covering the land in controversy.

In support of the title claimed under this judgment the defendant offered in evidence a deed of trust signed by E. S. Woodford, of the first part, William Hodge, of the second part, and McIlhenny, Willis & Bro., by James C. Gaither, agent, of the third part. The execution of the deed was acknowledged by Woodford and Hodge before James C. Gaither, who had signed the instrument as agent for McIlhenny, Willis & Bro., and the reading of the deed in evidence as a recorded instrument was objected to by the appellees on that ground, and the objection was sustained by the court.

After the court had refused to permit the deed to be read as a recorded instrument, the defendant made oath that the residences of the subscribing witnesses were unknown to him, and then offered to read the same deed on the proof of its execution contained in the deposition of the notary, James C. Gaither, and the deed was again excluded. Exceptions were taken to both rulings, and error assigned.

The deed of trust is signed as follows: “Given under our hands and seals--using scrolls for seals--this 2d day of December, A. D. 1861.

+--------------------------------+
                ¦E. S. WOODFORD,         ¦[L. S.]¦
                +------------------------+-------¦
                ¦WM. HODGE,              ¦[L. S.]¦
                +------------------------+-------¦
                ¦MCILHENNY, WILLIS & BRO.¦[L. S.]¦
                +--------------------------------+
                

By JAS. C. GAITHER, Agent.

Witnesses: P. H. HARGOU, E. HENKEL.

+--------------------+
                ¦STATE OF TEXAS,   ¦)¦
                +------------------+-¦
                ¦Fayette County.   ¦)¦
                +--------------------+
                

Before me, James C. Gaither, a notary public for the county and State aforesaid, personally appeared William Hodge and E. S. Woodford, who acknowledged that they signed the within instrument of writing for the purposes and consideration therein set forth and expressed.

Given under my hand and seal of office, this 2d day of December, A. D. 1861.

JAMES C. GAITHER, N. P. F. C.

+--------------------+
                ¦STATE OF TEXAS,   ¦)¦
                +------------------+-¦
                ¦Fayette County.   ¦)¦
                +--------------------+
                

Before me, Robert Zapp, a notary public of the county and State aforesaid, personally appeared James C. Gaither, who acknowledged that he signed the above instrument of writing for the purposes and consideration therein set forth and expressed.

Given under my hand and seal of office, this 2d day of December, 1861.

ROBERT ZAPP, N. P.”

On the foregoing certificates, this instrument was recorded in Washington county on the 10th day of September, 1862.

Giddings & Morris, for appellant.--Whatever agency Gaither may have had in inducing Woodford to sign a deed of trust to secure the debt for McIlhenny, Willis & Bro., it could have no bearing whatever on his official qualification to take the acknowledgment. He, as agent, had no interest in the matter whatever.

The point is fully illustrated in the case of Bank v. Porter, 2 Watts' Rep., 141, where the protest of a notary, who was a stockholder in the bank which was a party to the suit, was held incompetent evidence to charge an indorser.

The whole objection in such cases is put upon the ground of interest, as stated in the cause referred to. And if the testimony of an agent, who has no interest in the suit or subject matter, is incompetent, then there is some plausibility in the objection; but that agency alone will not disqualify, needs no authority.

The unqualified proposition that a deed can be proved by a subscribing witness only, is really startling. We know it has been the impression of the bar that a deed might be proved by the acknowledgment of the grantor himself. See White v. Holliday, 20 Tex., 679, where the grantor was called as a witness, and permitted to prove the deed without even calling or accounting for the absence of the subscribing witness. And we feel sure that till this ruling was made by his honor, that the impression of the bar was, that if the subscribing witness were dead, or their residence unknown, or where they reside out of the State, that the deed might be proved otherwise than by the subscribing witnesses. (Paschal's Dig., 5009.)

The court ruled out the trust deed and excluded it from the jury, because the depositions of Gaither did not prove the execution of the deed of trust.

Now, admitting for the sake of argument, that the first ruling of the court on the question of agency in the notary is correct, which we can but feel is doing violence to both the spirit and letter of the law--we do prove by Gaither's deposition the execution of the trust deed, which carries our right behind plaintiff's title--and remembering, too, that the sole objection taken was “because it could be proved only by a subscribing witness, and that the deposition did not prove its execution,” the glaring error of the charge at once appears.

The only question presented in the case on the merits is, “Did Mrs. McFadin and the plaintiffs have notice of the trust deed at the time they purchased the land?”

If they had notice of the trust deed which was executed some three months prior to the sale by Woodford to Mrs. Eliza McFadin, then they took the land subject to the incumbrance, and a sale under the trust deed would vest a good title in the purchaser at the sheriff's sale, notwithstanding Woodford's sale in fee of the land.

That a party purchasing with notice of an unrecorded deed or incumbrance takes subject thereto, is too well settled to require authority. (McCulloch v. Renn, 28 Tex., 793.)

In Elliot v. Whitaker, 30 Tex., 412, it is said, “Where a party purchased, knowing that his grantor had previously sold the land to another, it is such a fraud as to destroy the conveyance as a muniment of title under the 15th section of the act of limitations.” Counsel also cited Martel v....