McFaddin v. Preston , 54 Tex. 403 ( 1881 )

Bonner, Associate Justice.

We do not deem it necessary to dispose of all the errors assigned in this case.

1. The court did not err in overruling defendants’ application for a continuance. The alleged map for which the continuance was sought, was a part of their chain of title, and though they were chargeable with notice of its materiality, no sufficient diligence was shown to obtain it.

2. Neither was there, under the circumstances, error in refusing the defendants the right of trial by jury.

The statute in force provides that no jury trial shall be had in any civil case unless application therefor be made in open court on the first day of the term, on the call of the docket for this purpose. R S., §§ 3060-3066.

Tuesday, the sixteenth, was practically the first day of the term, and the defendants having then failed to demand a jury, they were not subsequently entitled thereto, at least without a sufficient excuse shown why the demand was not made in due time.

3. The constitution prohibits a judge from sitting in a case in which he may be interested. Const. 1876, art. V, sec. 11.

The statute is to the same effect. R S., art. 1090.

The interest of the learned judge presiding, however, was simply in the question involved, and not in the result of the suit. This was not such disqualifying interest as would prevent him from trying the cause, or would authorize the appointment of a special judge.

The presiding judge not having been disqualified, it was his duty, however embarrassing, to have proceeded with the trial. Taylor v. Williams, 26 Tex., 583; Railway Co. v. Ryan, 44 Tex., 426; Davis v. The State, 44 Tex., 523; 1 Greenl. Ev., § 389.

4. We are of opinion, however, that there was error in permitting the deed from Collet to Preston to be read in evidence over the objection of defendants, for which the judgment must be reversed.

Its execution was not attempted to be proven as at common law, and the statute dispensing with this was not complied with. R S., art. 2257.

This statute, with the exception that it requires three days instead of one in which to file affidavit of forgery, is a copy of that of 1846. Pasch. Dig., art. 3716; O. & W. Dig., art. 469.

Under the last named statute, it has been decided that the instrument sought to be introduced in evidence must, before it was filed for this purpose and notice given, have been recorded. Gaines v. Ann, 26 Tex., 340; Holliday v. Cromwell, 26 Tex., 188; Wiggins v. Fleishel, 50 Tex., 62; Butler v. Dunagan, 19 Tex., 559; Crayton v. Munger, 11 Tex., 234.

We are asked to review and overrule these decisions. A careful inspection of the statute will show that they are correct. It provides that “ Every instrument of writing which is permitted or required by law to be recorded in the office of the clerk of the county court, and which has been or may be so recorded, after being proven or acknowledged in the manner provided by the laws in force at the time of its registration, shall be admi tted as evidence without the necessity of proving its execution;” provided that it is filed among the papers of the suit, and at least three days notice given, etc.

Counsel misconstrues the above clause, which reads, “ and which has been or may be so recorded.” This was evidently intended to expound the operation of the statute so as to embrace both those instruments which had been recorded previously as well as those subsequently to its passage, and should be construed as though written — and which has heretofore or may hereafter be so recorded.

If it be admitted that the statutory notice of the filing of this deed had been given, the deed was not at the time properly authenticated even for record, and it is not pretended that it had been then recorded.

Under the circumstances, the defendants were chargeable only with notice of an intention to read the deed as then presented, and not as changed by subsequent authentication and record.

Reversed and remanded.

[Opinion delivered February 4, 1881.]