Fulton v. Bayne , 18 Tex. 50 ( 1856 )

Wheeler, J.

It does not appear by the bill of exceptions, or otherwise by the record, on account of what objection, or on what ground, the plaintiff’s evidence of title was excluded. It was the original testimonio, which appeared to have been duly probated for record in 1838. The objection to its admission in evidence appears to have been general; and as the bill of exceptions discloses no objection to the mode of its authentication or proof, and assigns no reason for its exclusion, we must suppose it was on the ground of its incompetency or insufficiency to prove title in the plaintiff.

But two grounds of objection to the validity of the title have been suggested in argument. The first is the same misdescription of the concession, in the power of attorney under which the final title was obtained, which was noticed and disposed of in the case just decided of Fulton v. Duncan ; and which does not require further notice here. The other is the reservation in the concession, of the right of the Supreme Government to select the land for the dues of the State. This objection, upon a similar reservation, was considered and disposed of in the case of Swift v. Herrera, (9 Tex. R. 263.)

The testimonio afforded evidence of a valid title in the grantee ; and it was error to reject it as incompetent evidence of title. It is said the plaintiff was not injured by the ruling of the Court, because he did not produce evidence of a conveyance to himself. But when evidence of the original title was rejected, it would have been an idle and useless thing to have offered evidence of the mesne conveyances. When the foundation of his evidence of title was thus swept away, he was excused from offering any other evidence. That was not necessary to entitle him to a revision of the ruling of the Court, upon the admissibility of the original title under which he claimed.

Again, it is said the signature of the Commissioner was not proved, and there was not such notice of the filing of the deed, given to the opposite party or his attorney of record, as entitled it to be admitted in evidence under Article 745 of the Digest. There is, it is true, no evidence of the service of notice on the party, or his attorney. But notice was filed with the deed at the Fall Term of the Court, 1849, and the case was not tried until the Spring Term, 1852. It is scarcely possible that the deed and written notice could have been on file among the papers of the cause for such a length of time, during which, the record shows, the parties were taking proceedings in the case, without coming to the attention and knowledge of the party or his attorney. The Statute does not prescribe the manner in which the notice shall be given. If, therefore, the party, or his attorney, has notice, it will be sufficient: and the supposition that there was not notice in fact, in this case, would be too violent a supposition to indulge, when the objection was not made in the Court below. Had the objection been there taken, doubtless the record would have shown the fact of notice brought home to the party, or his attorney of record.

The only possible ground of objection to the admissibility of the testimonio, we can perceive, is that, though probated, or acknowledged for record, it does not appear whether it had been in fact recorded, so as to admit it in evidence without proof of the signature of the Commissioner, or other proof of its execution. But this objection has not been taken or suggested, either in the Court below, or in this Court; and we must conclude that it could not justly be taken : that the deed had in part been recorded ; and if the attention of the Court or the party had been called to it by objection in the Court below, it would have been made so to appear to this Court. At all events, it is an objection of a character which we do not think this Court would be warranted in taking for the party; or which, if first taken by the party in this Court, ought to avail him to defeat the right of the opposite party, who had no opportunity to meet and obviate the objection. Had there been any objection taken below to the manner of the authentication of the title, the plaintiff might have met and supplied it by proof of its execution, or by other evidence.

We are of opinion that the Court erred in rejecting the plaintiff’s evidence of title; for which the judgment must be reversed and the cause remanded.

Reversed and remanded.