Stark v. Harris

• Decision Date: 27 November 1907
• Citation: 106 S.W. 887
• Parties: STARK v. HARRIS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

106 S.W. 887

STARK v. HARRIS.^*

Court of Civil Appeals of Texas.

November 27, 1907.

Rehearing Denied January 8, 1908.

Appeal from District Court, Menard County; J. W. Timmins, Judge.

Action by Sidon Harris against Ennis Stark, others being impleaded by defendant. From an adverse judgment, defendant Stark appeals. Reversed and remanded.

John Brown, for appellant. Sidon Harris, for appellee.

FLY, J.

This is an action of trespass to try title to 640 acres of land, granted to F. Selks, in Menard county, Tex., instituted by appellee against appellant, Ennis Stark. Appellant pleaded not guilty, and impleaded Anna Mohr, Charles Mohr, Agnes Grandpre, Frank L. Nuse, and Henry L. Nuse, on their warranty of title to him, and they answered, adopting his pleadings. The cause was tried by the court, and resulted in a judgment for appellee for the land, and a judgment for $1,858 in favor of appellant Stark against his warrantors, and against appellee for the sum of $1,595 on value of improvements.

The original transcript in this case was filed in this court on February 27, 1907, and on November 13, 1907, a motion to strike out the statement of facts and bills of exceptions 1, 5, and 6, because of material alterations made in the bill of exceptions since they were approved by the trial judge, and on account of improper conduct in securing approval of the statement of facts, was filed in the district court; and on a hearing of the matter, after notice to appellant's attorney, it was found by the court that bills of exceptions numbers 1, 5, and 6 had been materially altered, "without the knowledge or acquiescence of this court or appellee," and that the approval of the statement of facts had been procured by sharp practice, and the same were stricken from the record of the case. A transcript of those proceedings is before this court, and it appears therefrom that appellants did not contest the motion in the lower court, but seek to contest the order of the court on the ground that the court had no authority to make such order.

The proceedings in this case, in connection with the statement of facts, which was shown to have been changed before the judge approved it, are fully sustained by several decisions of this court and the Supreme Court of Texas. Railway v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805; Boggess v. Harris, 90 Tex. 476, 39 S. W. 565; Willis v. Smith, 90 Tex. 636, 40 S. W. 401; Ennis Mercantile Co. v. Walthen, 93 Tex. 622, 57 S. W. 946; Corralitos Co. v. Mackay, 31 Tex. Civ. App. 316, 72 S. W. 624. The lower court had the papers and other evidence before it, and we see no error in its action in striking the statement of facts from the record.

It is evident from the motion to strike out, as well as the order of the court, that the alterations in the bills of exception were made after they had been approved by the court. It will be noted that in all the cases cited, where trial courts are permitted to strike out bills of exception or statements of facts after appeals had been perfected, the signature of the judges had been procured by undue practice or fraud. No such question arises as to the bills of exception in this case, and the affidavit of appellee, upon which the court in terms based its order, shows the specific alterations that were made, after they had been approved by the judge, either by appellant or his attorney. Under such circumstances, we know of no authority vested in a trial court, in the absence of proof of direct complicity of a party in the alteration of the record, to strike the altered paper from the record, but it would seem fair and just that the court should only make the record speak the truth, so that the rights of the parties could be preserved and passed upon by the appellate court. Boggess v. Harris, 90 Tex. 476, 39 S. W. 565; Johnston v. Arrendale, 30 Tex. Civ. App. 504, 71 S. W. 45. In the last-named case it is said: "It is a matter of prime importance in the administration of justice that the records of the trial courts should speak the truth. If they become mutilated, falsified, tampered with and changed so as to make it appear that the trial court did what in fact it did not, we are powerless to correct them; and if not corrected in the trial court, which has custody and jurisdiction over their records so far as made by them, they must go uncorrected, and justice be defeated on appeal." That language was used in a case in which the charge of the court had been altered, and the trial court had corrected it. Undoubtedly the district court had the right to correct the altered bills of exception, and cause them to speak the truth, but it did not have the authority to strike the bills of exception from the record, in the absence of fraud or sharp practice having been used in procuring their approval, simply on the ground that they had been altered after being signed. It may be that if appellant had been shown to have made the alterations, or that he had connived at, or acquiesced in, some one else making the change, he should be punished by being totally deprived of the benefit of the altered paper; but such does not appear in this case, and the court should have been content with correcting the record so as to make it speak the truth to this court. The order of the court, taken with the matters set out in the affidavit to which it refers, clearly indicates the alterations made in the bills of exceptions, and forms a basis for the consideration of the bills of exception as they were when approved by the court, and they will be so considered.

The land in controversy was patented in 1856 to Henry F. Fisher, who died intestate in 1867, leaving surviving him his wife and four children. Appellee claims the land by mesne conveyances from the heirs of Fisher, and to meet his case appellant sought to introduce in evidence a deed from Henry F. Fisher to George Butler, dated November 17, 1859, conveying to him the 640 acres of land in controversy as well as other lands. The deed was acknowledged before an officer in New York, describing himself as a commissioner of deeds for Texas, and was recorded in the records of deeds of Bexar county on July 20, 1869, and was recorded in Tom Green county on January 6, 1881. It was not recorded in Menard county until November 13, 1906, just before the trial of this cause. The court excluded the deed upon objections that no evidence was introduced that the commissioner of deeds who took Fisher's acknowledgment to the deed was properly qualified, and no proper seal was affixed thereto; that it was not proven as at common law; that it was not admissible as an ancient instrument; that it was not filed for three days among the papers and notice of filing given; and that it had not been properly recorded in Bexar county in 1869. Appellant was not required to prove that the commissioner of deeds, who took the acknowledgment in 1859, was duly qualified to take acknowledgments. The certificate of acknowledgment recited that the officer taking it was "a commissioner in and for the state of New York, appointed by the Governor of Texas to take proof and acknowledgment of deeds, mortgages, letters of attorney, or any other instrument to be used or recorded in the said state of Texas," and that was sufficient. If the acts of one claiming to be an officer of the state could be invalidated by a failure to prove his appointment and qualification after a lapse of nearly 50 years, those acts would generally be declared invalid. The presumption will prevail that the commissioner was appointed, as authorized by the law in force in 1859, and that he acted in conformity to law and within the scope of his duty. All persons proved to have acted in a public office are presumed to have been duly appointed until the contrary appears. 1 Greenl. Ev. § 92. The seal of the commissioner of deeds was not impressed upon the certificate of acknowledgment by a seal, but all of it was engraved thereon with the exception of the word "Texas," which was in writing, and this seems to have been the subject of objection. A similar objection to the engraved seal of a commissioner of deeds was made in the case of Davis v. Roosvelt, 53 Tex. 305, and was thus met by the Supreme Court: "The answer is that there was no statute in force at the time the certificate was made (1868) requiring the commissioner to provide for himself a seal with a star of five points in the center. * * * At the time when the certificates were made the form of the seal does not appear to have been prescribed, and the one used cannot be pronounced insufficient."

The deed offered in evidence was executed in 1859, and was placed...