Edwards v. Smith , 1911 Tex. App. LEXIS 265 ( 1911 )

NEILL, J.

Smith sued appellant and John ■M. and Jesse M. Edwards in trespass to try title to recover two tracts of land, one containing 443/io acres out of the northwest part of survey No. 11, block 129, Texas & St. Louis Railroad Gompany, original grantee, in Pecos county, and the other containing 16 acres out of the southeast part of survey No. 3, same block and grantee. The suit was also to recover damages for the rental value of the land during the alleged period of its occupancy by the defendants. The last-named defendants disclaimed any interest in the land, and the appellant Wm. M. Edwards pleaded not guilty, and specially pleaded that on January 6, 1906, R. R. Wakefield was the equitable owner of section No. 11, block 129, described in plaintiff’s petition, and put the improvements, consisting of a well, windmill, houses, etc., on land which was supposed to be on said section, but that in surveying section No. 10 of said block defendant ascertained said improvements, which are described in plaintiff’s petition, were on that section, and that he then purchased from Wakefield a one-half interest in said improvements, paying $424 therefor, and was delivered possession of the same by him, and that defendant was dispossessed by a writ of sequestration wrongfully sued'out in this case by plaintiff, and that defendant has been damaged in that sum by reason thereof

Conclusions of Fact.

The plaintiff holds survey No. 11,- block 129, Texas & St. Louis Railroad Company, original grantee, and survey No. 3, same block and grantee, under a regular chain of title from and under the sovereignty of the soil down to himself; that is, if a certain deed made by Felix H. Robertson, as special master commissioner under a certain judgment or decree of the United States Circuit Court for the Northern District of Texas to Gist Blair on February 17, 1891, which is a link in the chain, was properly admitted in evidence over the objection of defendant, appearing in onr conclusions of law. The only issue of fact in the case is whether the land sued for or any part of it is within the boundaries of either of the surveys above mentioned. This issue was submitted to the jury by a proper charge, and there was an affirmative finding of it, which is supported by a preponderance of the evidence.

Conclusions of Law.

1.It is complained that the court erred in admitting in evidence, over objection of the defendant, a copy of the judgment of the Circuit Court of the United States and of the proceedings thereunder, upon which rests the authority of Felix H. Robertson, as master commissioner, to sell the two surveys in question and execute the deed to the purchaser (Gist Blair), which is referred to in the foregoing conclusions of fact. The copy of the judgment or decree and proceedings thereunder show everything essential to the grantor’s power to make the sale and deed to Blair, and that the sale was confirmed by the court.

The objections urged and here insisted on by the defendant to its introduction are: (1) That said record of the federal court is not legally authenticated, in that the judge of said court did not certify that the clerk’s certificate to the copy offered in evidence was in due form; (2) that the certificate shows that it was made by a deputy and not by the clerk himself; and (3) that there was no copy of any report of sale shown, it purporting to be the action of the court on a report of sale of land. It appears that the certificate of the clerk to the copy of the record conformed in everything to section 905, U. S. Rev. Stats. (U. S. Oomp. St. 1901, p. 677), save that it was not certified by the judge that the clerk’s certificate is in due form, and th(:t the certificate of the clerk was made by his deputy.

[1, 2] It has been held that it is essential to the authentication of a copy of a judgment under section 905, U. S. Rev. Stats., in order to render it admissible in evidence by reason of such authentication, for the certificate of the clerk to be made by the clerk of the court in person, and not by his deputy (Wharton on Ev. § 101; Hutchins v. Gerrish, 52 N. H. 205, 13 Am. Rep. 19; Duvall v. Ellis, 13 Mo. 203; Wilburn v. Hall, 16 Mo. 426; Willock v. Wilson, 178 Mass. 68, 59 N. E. 757), and for his certificate to be certified by the judge to be in due form (Trigg v. Conway, Hempst. 538, 14 Fed. Cas. No. 14,172; Craig v. Brown, Pet. C. C. 352, 3 Fed. Cas. No. 3,328; Callin v. Underhill, 4 McLean, 199, 2 Fed. Cas. No. 2,523); but this statute does not apply to the courts of the United States, but is limited in terms to the records and judicial proceedings of the state courts (National Acc. Soc. v. Spiro, 94 Fed. 750, 37 C. C. A. 388); nor does it apply to judicial records of state courts where offered in evidence in a federal court (Mewster v. Spalding, 6 McLean, 24, Fed. Cas. No. 9,513); nor do we think it applicable where judicial records of a federal court are offered in evidence in a state court, especially when the federal judgment is of the state in whose court it is offered in evidence.

[3-6] As the federal courts take judicial knowledge of the laws of every state in the Union, and do not require the certificate of the judge of a state court that the attestation of the clerk thereof is in due form (Bennett v. Bennett, Deady, 299, Fed. Cas. No. 1,318), so do the state courts take judicial knowledge of the laws of the United States, and, for the same reason, should not require such attestation of the judge of a federal court that the certificate of the clerk of his court is in due form. The federal tribunals are not regarded as foreign to each other or to the state courts; and, when a judgment of a federal court is sued on or offered in evidence in a state court or in another federal court, it is entitled to full faith and credit under the Constitution.

[7] If judgments or decrees of the United States Circuit Courts sitting in this state should not be accorded here, whether as a foundation of an action or defense, either by plea or proof, such effect as would be given judgments or decrees of our courts of equal authority, the constitutional provision requiring that it be given full faith and credit would be violated. Turnbull v. Payson, 95 U. S. 418, 24 L Ed. 439; MeElmoyle v. Cohen, 13 Pet. 312-326, 10 L. Ed. 177; Embry v. Palmer, 107 U. S. 3-20, 2 Sup. Ct. 25, 27 L. Ed. 346; Crescent City Live Stock Co. v. Butcher’s Union, 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614. Had the judgment and proceedings of the federal court which were admitted in evidence been of a state court with jurisdiction to adjudicate the matters determined by it, the copy of the record, certified to as it was, would have been clearly admissible under article 2306; Rev. Stats, of 1895, and full faith and credit accorded such judgment and proceedings. Hence we overrule the assignments which complain of its admission in evidence.

2. The third and fourth assignments, which complain of the sufficiency of the evidence to support the verdict, are disposed of adversely to the defendant by our findings of fact, and need not be further considered.

3. The charge of the court was not upon the weight of the evidence, as is complained by the fifth, sixth, and ninth assignments, but correctly submits the only issue of fact raised by it to the determination of the jury.

4. That none of the special charges requested by defendant should have been given is too apparent to require us to discuss any of the assignments which complain of its refusal. They are all overruled.

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