Mapes v. Leal's Heirs , 27 Tex. 345 ( 1864 )

Moore, J.

The court below did not err in excluding from the jury, the paper offered by the appellants as an hipotica especial by Francisco Leal, the grantee of the land in controversy, to John Turner. The execution of the instrument was not proved, nor were such facts in connection With it shown as authorized its admission as evidence upon the presumption of its due execution. It having been shown that the grantor and subscribing witnesses were dead, it would have been sufficient to have admitted the instrument in evidence, to have proved the hand-writing of the grantor, or one of the witnesses. (1 Greenl. Ev., sec. 575.) But the proof adduced in this particular was wholly insufficient. There was no effort to prove the hand-writing of but one of the witnesses; and the party by whom it is insisted this was done, did not qualify himself to testify with reference to it. He stated, “that he had had some business” with Thomas Murphy, the subscribing witness, and that he thought his signature to the instrument offered genuine; but upon cross-examination, he stated that he did not believe that he had ever seen Murphy write. And it was not shown that he was in fact acquainted with Murphy’s hand-writing, or had ever seen any signature of his that he knew to be genuine. That the simple fact of a witness having “had some business” with a party, does not qualify him to testify as to his hand-writing, is much too plain for argument. The proof of the grantee Turner’s hand-writing clearly furnished no evidence of the authenticity of the instrument, or any grounds for its admission.

Nor were the appellants authorized, as they insist, to read the instrument without proof of its execution, on the presumption of its authenticity as an ancient deed. It is a rule of common law, that deeds more than thirty years old, and unblemished by any alterations or other • just ground of suspicion, are presumed to be genuine, without express proof of their execution. (1 Greenl. Ev., secs. 21, 144.) Without discussing the qualifying circumstances which are attached to this rule, it is sufficient to say, that the deed rejected by the court, in this case, was less than twenty-four years old when it was offered in evidence. And there is nothing shown in the present case, calling for a relaxation of the general rule, if it is within the power or discretion of the court to modify it; though, when the mere age of an instrument is relied upon as evidence of its authenticity and due execution, we know of no case in which less than thirty years has been held sufficient for this purpose. The execution of any instrument, without reference to its age, it is hardly necessary to say, may be inferred as a question of fact by the jury, from circumstantial evidence, in the absence of proof of the hand-writing of the grantor, or subscribing witnesses, when, by reason of the death or absence of the latter, recourse may be had to secondary testimony.

The hipotica especial, and the transfer of it by Turner to Bowers, were not papers pertaining to the records of the general land office, and were not archives of said office, or properly deposited therein; and the certified copies of them by the commissioner were, therefore, also correctly rejected by the court below.

There is no error in the judgment, and it is, therefore, affirmed.

Judgment affirmed.