Wacaser v. Rockland Savings Bank

• Decision Date: 14 December 1914
• Docket Number: (No. 1369.)
• Citation: 172 S.W. 737
• Parties: WACASER et al. v. ROCKLAND SAVINGS BANK.
• Court: Texas Court of Appeals

172 S.W. 737

WACASER et al. v. ROCKLAND SAVINGS BANK.

(No. 1369.)

Court of Civil Appeals of Texas. Texarkana.

December 14, 1914.

Rehearing Denied December 17, 1914.

Appeal from District Court, Morris County; H. F. O'Neal, Judge.

Suit by Jeff Wacaser and others against the Rockland Savings Bank. From a judgment for defendant, plaintiffs appeal. Affirmed.

The brief of appellants states that the suit was brought by appellee against them to remove cloud from title to 618 acres of land and to recover title and possession of same. Appellants set up the plea of not guilty and that the deed of trust from W. F. Wacaser to J. B. Roark was a forgery, and, further, that the trustee in making sale did not post a public notice of sale at the courthouse of the county where the sale was made. There was a trial to the court with a jury, resulting in judgment in favor of the appellee.

It was admitted that the appellants were the heirs, and only heirs, of W. F. Wacaser and his wife, and that both of the latter are dead. The appellee proved a patent to the land in suit issued by the state on April 4, 1868, to W. F. Wacaser, assignee of the Buffalo Bayou, Brazos & Colorado Company. On August 3, 1873, W. F. Wacaser executed a deed of trust with power of sale to J. B. Roark, to secure an indebtedness by note to Everett Lane and J. A. Jones. The deed of trust was filed for registration August 22, 1873. J. B. Roark, as trustee executed a conveyance of the land on July 17, 1874, to Everett Lane, acknowledged by one of the two subscribing witnesses, and registered December 4, 1874. The deed recites sale under powers of the deed of trust and in compliance with its requirements and terms. Everett Lane, on December 28, 1898, executed a conveyance of the land to appellee, which deed was registered April 14, 1899. It was admitted the land was wild land, and had never been in the actual occupancy or use of any one. The record admits payment of all taxes by appellee. There is no proof offered by appellants except that arising from heirs of W. F. Wacaser and wife, both deceased. The facts support the judgment.

P. A. Turner, of Texarkana, and G. D. Hart, of Daingerfield, for appellants. Rolston & Rolston and Ward & Ward, all of Mt. Pleasant, for appellee.

LEVY, J. (after stating the facts as above).

It is urged by the first assignment that there was error in admitting the certified copy of the deed of trust from W. F. Wacaser to J. B. Roark, trustee. The certified copy, properly filed for more than three days among the papers of the case, was tendered in evidence with affidavit accounting for the nonproduction of the original instrument, and in connection with oral evidence of a witness that no adverse nor inconsistent claim to the one evidenced by such instrument had been asserted during the previous ten years to the date of this suit, or since the deed of trust had been registered for record in the county clerk's office. The precise objections to the introduction of the certified copy of the instrument made and insisted upon are that an affidavit had been made and filed for defendants, stating that the affiant believed the deed of trust to be a forgery, and further that, as the original was not an instrument subject to registration, a copy thereof could not be admitted as an ancient instrument. Article 3700, R. S. of 1911, provides that:

"Every instrument which has been, or hereafter may be, actually recorded for a period of ten years in the book used by the said clerk for the recording of such instruments, whether proved or acknowledged in such manner or not, shall be admitted as evidence in any suit in this state without the necessity of proving its execution, provided, no claim adverse or inconsistent to the one evidenced by such instrument shall have been asserted during that...