Holmes v. Coryell , 58 Tex. 680 ( 1883 )

Staytox, Associate Justice.

Upon the former appeal it was decided by the commissioners of appeals, to whom the case was referred by agreement of parties, that the deed from Antonio Officier to J. E. Bump was properly admitted to record upon proof by the sole subscribing witness thereto of its execution, such authentication having been made before a proper officer and evidenced by a proper certificate.

This question having been so.decided, it does not become necessary now to consider the question.

A certified copy of that deed having been tendered in evidence with affidavit accounting for the non-production of the original deed, and of other deeds which constituted links in the chain of the plaintiffs’ title, this copy was objected to upon the sole ground that an affidavit had been filed by one of the defendants, stating that it was believed that the original deed from Officier to Bump was a forgery. Ho other objection seems to have been offered to the evidence.

That deed purported to have been executed on 13th July, 1843, and to have been proved for record by P. Edmunds, the only subscribing witness thereto, before Oscar Parish, clerk of the county court for Galveston county, on the 14th of July, 1843, on which day it was recorded in the records of deeds for that county, in Book 0, p. 238. The objection to the certified copy of the deed having been made, the “plaintiffs then temporarily withdrew the offer of said certified copy, and introduced as witness in behalf of plaintiff, Oscar Parish, who testified as follows: That he was county clerk of Galveston county continuously from the organization of said county, in 1839, until after the end of Confederate war, when he was turned out of the office by the federal military authorities. That in 1843, and prior thereto, he knew Antonio Officier intimately; that Officier was a carpenter who dealt some in real estate, and he, the witness, generally did Officier’s conveyancing, drawing his deeds and papers; that he was familiar with Antonio Officier’s signature in .July, 1843, and had frequently seen him write his name; that on yesterday he, the witness, examined Book 0, p. 238, of records of Galveston county, and found there in his, witness’, own handwriting as then clerk, the record of the instrument of which the certified copy of deed from Antonio Officier to J. Bump is a copy; that bis examination of said record book further shows that the instrument wras proven for record before him as said clerk by P. Edmunds, the only subscribing witness thereto; that if there had been any question, at the time he recorded said instrument’ in his mind, as to signature of Antonio Officier being genuine, he should certainly not have recorded it. That he, the witness, has no recollection of said instruments or any facts connected with proof for record, or recording of it, other than he gets from the record entry as made by him at the time.

“That he, Farish, knew the grantee in the instrument well in July, 1843, and Antonio Officier knew Rump well; that Rump was at that time a justice of the peace, and of fair character. That Officier died in 1848. That he, Farish, knew P. Edmunds at the time well; that Edmunds was doing considerable business in real estate, both as agent and on his own account, and his signature is of record to many instruments executed in those days, both as a principal and as a witness. Edmunds came to Texas from Virginia, and I, being from Virginia, knew that he had been accused of forgery there, but do not know that it was generally known in Texas. Edmunds afterwards became a complete sot and died a drunkard’s death, some time between 1855 and I860, or thereabouts, and for a number of years before he died became as low and disreputable as a man could be.”

Plaintiffs then again offered the said certified copy of deed for property in suit, Antonio Officier to J. Rump, in connection with the evidence of Oscar Farish. Defendants renewed their objection, and the court allowed the certified copy in connection with Farish’s testimony to go to the jury.

It is urged that the court erred in admitting the testimony of Farish and the certified copy of the deed from Officier to Rump. We are of the opinion that there was no error in the admission of this evidence.

The grantor and grantee in the deed, as well as the subscribing ■witness thereto, were shown to be dead, and it would seem that there was no better evidence of the fact that the deed once existed, and that it was executed by Officier, and witnessed and proved for record by Edmunds. It was impossible to prove the execution of the deed by either party to it, or by the subscribing witness, for they were all dead. It is not shown that any person living knew more of the execution of the deed than did Farish, who was the officer who took the proof to authenticate the deed for record. He knew the parties and their signatures, and that he recorded a deed purporting to be made by Officier to Bump, and proved up before him for record by Edmunds, more than thirty-eight years before he testified, and then had no cause to suspect that it was not in fact the deed of Officier. His testimony was not so strong as would have been that of a subscribing witness, or of some other person who actually saw Officier execute the deed; but this furnished no reason for excluding it, if it tended in a remote degree to prove any issue in the case.

If his testimony had tedded to prove no other facts than that he once had in his possession a paper which he correctly transcribed into the record of which he was the custodian; that the paper purported to be a deed for the property in controversy, from Officier to Bump; that it was authenticated for record before him by a subscribing witness, and that this all occurred in the year 1843,— his evidence would have been relevant.

Of the rule which requires the best evidence of which the case from its nature is susceptible, it has been said: “ This rule does not demand the greatest amount of evidence which can possibly be given of any fact; but its design is to prevent the introduction of any which, from the nature- of the case, supposes that better evidence is in the possession of the party. ... In requiring the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule only excludes that evidence which itself indicates the existence of more original sources of information.” 1 G-reenl. Ev., 82.

There was no objection urged against the introduction of the certified copy of the deed, except that an affidavit had been made and filed by one of the defendants, stating that he believed the deed to be a forgery.

The deed was made in the year 1843, as is rendered certain by the proof that it was in that year recorded in the county where the land is situated, and where all of the parties to it lived.

The statute provides that any instrument which is permitted or required to be recorded, which is recorded, shall be admitted in evidence without proof of its execution, if it is filed and notice thereof given as the statute requires, unless- the opposite party, or some other person for him, shall, within three days before the trial of the cause, file an affidavit stating that he believes such instrument to be forged. R. S., 2257.

The statute simply relieves parties from the necessity of making proof of the execution of deeds, which but for the statute it would be necessary for them to make before the deeds or other instruments of writing could be received in evidence. It does not impose any burden upon a party w'ho desires to use an instrument in evidence, against which an affidavit of forgery has been filed, greater or other than the common law rules of evidence would have imposed upon the party offering the instrument.

When the affidavit of forgery is filed, the party is simply remitted to the common law method of proving the execution of the instrument before it can be used in evidence.

The deed in question, under the decision heretofore made in this case, was duly recorded; a certified copy of it was filed in the papers with the requisite notice; an affidavit of the loss of the original deed was filed, to which no exception was taken, and the statute in such case provides that “ a certified copy of the record of any such instrument shall be admitted in like manner as the original could be.” R. S., 2257.

The deed in question purported to have been executed more than thirty-eight years before the certified copy was offered in evidence.

That a deed thirty years old, coming from the proper custody, free from suspicion, which has been acted upon so as to give some corroborative proof of its genuineness, will be admitted in evidence without proof of its execution, is well settled, and the great weight of authority is to the effect that possession under such a deed is not essential. Stroud v. Springfield, 28 Tex., 649; Bass v. Sevier, decided at the present term; 1 Greenl., 570; 1 Wharton’s Law of Evidence, 732, 733; Starkie on Evidence (9th ed.), 521.

The deed must come from the proper custody, among other reasons, mainly that its delivery may be evidenced by the possession of a person claiming under it. The fact that it was recorded raises the presumption that it was delivered.

The record made in 1843 evidences with more certainty than the original deed would, if produced, that the deed was more than thirty years old; for skillful, indeed, would be the spoliation of a record book which could not be detected. It comes free from suspicion upon any just ground, with strong facts corroborative of its genuineness.

The grantor and grantee, as well as the subscribing witness, were all residents of this city at the time the deed purported to be executed, and continued to be so for many years after that date; at that time the population of the place did not exceed two thousand five hundred; the deed was placed upon the public records the next day after the date thereof; it, was proved for record before an officer to whom all the parties were known; the grantee conveyed the property to another citizen of the place October 1, 1844, by a deed which was recorded on November 9, 1844; after the date of the deed from Officier to Bump no taxes were ever paid by Officier upon the property; taxes were paid upon the property, or at least it was rendered for taxation, by the grantee of' Bump, while Officier was living; so far as the record shows, Officier never set up any claim to the property after the date of the deed to Bump, although he lived about five years after that date; no claim was ever set up to the property by the heirs of Officier until 1874, and not then until they were advised by a lawyer that there was a broken link in the chain of title to appellee, and his anxiety had induced him to offer a sum of money to the heirs if they would perfect what was thought to be a defective record.

The certified copy of the deed, coming surrounded with such facts., was properly admitted in evidence, for under the common law rules of evidence the deed would prove itself; and under given circumstances the statute of this state, as before said, declares that “ a certified copy of the record of any such instrument shall be admitted in like manner as the original could be.” When offered, being more than thirty years old, it stood as would a deed of less age after- it had been proved by one or more of the subscribing witnesses, and' upon those who sought to attack its genuineness rested the burden of proof. Starkie on Evidence, (920), 592.

The court fairly instructed the jury, if they believed from the evidence the deed to be a forgery, they should find for the defendants, and did not err under the facts in instructing the jury that “ a deed over thirty years old is evidence without any other proof.”

If the court had instructed the jury that such a deed was conclusive evidence, or had otherwise violated the rule which forbids the court to charge upon the weight of evidence, it would have been error; but there is nothing of the sort in the charge complained of. It was simply a statement to the jury, in effect, that they might consider the certified copy of the deed, and give to it such weight as in their judgments it was entitled to.

The statement of facts and bills of exceptions show that the court admitted in evidence “ a certificate under the hand and seal of the comptroller of the state of Texas, of all property-rendered by Antonio Officier, J. E. Bump and J. H. lilies for taxation from 1842 to 1848, inclusive, as shown by the records of G-alveston county, on file in comptroller’s office.”

This is assigned as error, but the grounds of objection do not appear in the bills of exceptions, and we might, therefore, disregard the assignment.

[Opinion delivered February 16, 1883.]

The presumption from the record is, that the statement was one which the comptroller was authorized to make, and that it was proper evidence. R. S., 2260.

The judgment is affirmed.

Affiemed.