Wooten v. Dunlap , 20 Tex. 183 ( 1857 )

Wheeler, J.

It is unnecessary to revise all the errors complained of, as there is one which must be decisive of this appeal. The defendants objected to the admission in evidence of the instrament, intended as the Sheriff’s deed, for the cause, among others, that it had not been filed three days before the trial and notice thereof given to the defendants. The objection appears to have been well taken. Such filing and notice were necessary to admit the instrument in evidence under Article 745 of the Digest. The date of the filing is but the day before the rendition of judgment, and no notice appears to have been given. The instrument was not otherwise proved, and it was not admissible under the statute as a recorded instrument, because of the failure to comply with the requirements of the law. There may have been evidence before the Court sufficient to admit it, but it does not so appear by the record, and we must therefore hold that it was erroneously admitted. Excluding the instrument, there is no evidence of title or right in the plaintiff; it was not proved that he paid the purchase money, or that he was the purchaser of the property. The recovery therefore in his favor cannot be maintained.

With a view to future proceedings in the cause, it may be proper to notice some of the other objections to the judgment. And it is objected that the District Court had not jurisdiction of the case. This question has been settled adversely to the appellants. (Ellis v. Rhone, 17 Tex. R. 131.)

Again, it is objected that the petition is insufficient. It ought to have stated the names of all the parties defendant, instead of describing some of them, as it does, only as heirs, &c., without giving their names. But the persons described as heirs appear to have been brought before the Court by the service of process upon them, and to have answered to the merits. It was not objected that the proper parties defendant were not before the Court, nor does it appear that there are other parties in interest who ought to have been made parties to the suit. The objection was not made by exceptions, and was not raised by demurrer. The Court did not err in overruling the demurrer.

Had the plaintiff undertaken to deraign his title, through Mrs. Wooten, the widow, as the heir of her deceased husband, there might have been good ground for the objection to the admission of evidence to establish her community right. But such was not the case. The plaintiff did not state in what manner her title was derived; but only that she had a certain estate or interest in the land, of which he is the owner. In stating the parties defendant, he describes her, inaccurately, perhaps, as one of the heirs of her deceased husband; but that was mere matter of description, and not an averment respecting the derivation of his title. Consequently it did not confine him to proof of a title derived from or through her as an heir of the original grantee.

The only remaining objection, which requires notice, is that which relates to the execution. It was objected to the testimony of the witness, who deposed to the mutilation of the execution and the contents of the part which was missing, that there was no allegation in the petition to let in this testimony. But that was unnecessary. Where an instrument has been mutilated or defaced by the unlawful act of a stranger, so that its identity is lost, the law regards it, so far as the rights of the parties are concerned, merely as an accidental destruction of primary evidence, compelling a resort to that which is secondary; and in such cases the mutilated portion may be admitted as secondary evidence of so much of the original instrument. Whether it be a deed or other instrument, its original tenor must be substantially shown, and the alteration, or mutilation accounted for, in the same manner as if it were lost. It is only where it is a deed, and the party would plead it, that he must excuse the want of proferi by an allegation that the deed has been destroyed. (1 Greenl. Ev. Sec. 566.) It would have been better to have accounted for the mutilation of the instrument; and there would have been the greater necessity for such evidence, if it had been a private instrument, and not a paper which belonged to the official custody of a public officer. But the evidence was not objected to on this ground. It was competent, without an averment of the fact of mutilation, to produce so much of the instrument as remained, and prove the contents of the part which was missing in the same manner as if it were lost. There was therefore no error in admitting the evidence. But because the Court erred in admitting the instrument called the Sheriff’s deed, the judgment is reversed and the cause remanded.

Reversed and remanded.