Strippelmann v. Clark , 11 Tex. 296 ( 1854 )

Wheeler, J.

The grounds of error relied on, which are deemed to require notice, relate to the sufficiency of the evidence to support the--verdict, and of the matters stated in the application for a new trial, to excuse the non-attendance of the defendants, to urge their defence, or ask a postponement of the trial.

It is objected to the sufficiency of the evidence, that there was no proof of the signature of the defendants’ counsel, to the agreement indorsed on the deed of conveyance. The agreement was signed by the attorneys of record. They were officers of the Court; and their signatures were judicially known to the Court. If, in point of fact, the agreement was not what it purported to be, or the signatures were not genuine, this should have been stated in the application for a new trial: and, if made satisfactorily to appear, the application would doubtless have been granted.

It is insisted, however, that the agreement of counsel did' not amount to an admission of the execution of the deed by both grantors. We think otherwise. The admission of the execution of the deed, is, of course, to be understood of its due and legal execution, by the parties by whom it purports to have been executed. That a deed has been executed, is a legal conclusion, resulting from certain acts done; that is, the signing, sealing and delivery: and the admission of the legal conclusion necessarily includes an admission of the facts on which it is dependent. By waiving proof of the execution of the deed, the defendants, unquestionably, were to be understood as having waived any and all proof, which the plaintiff may be supposed to have had it in his power to adduce, of the facts necessary to constitute the legal execution of the deed: including, of course, proof, either of the signing by the grantors in person, or by some one legally authorized to sign for them.

The certificate of the Clerk of the county Court, of the acknowledgment of one of the grantors, made, doubtless, for the purpose of admitting the deed to record, does not repel this conclusion. It does not disprove the admitted fact, of the due execution of the deed by both grantors. If one made both signatures, it is to be taken, under the admission in question, that he had a power of attorney investing him with authority to make them. Its production was dispensed with, by the admission of the execution of the deed. The agreement of counsel clearly superceded the necessity of proof of the execution of the deed. It was rightly admitted in evidence, without other proof of its execution; and was evidence of the transmission of the title, from the grantors to the plaintiff, sufficient to warrant the verdict.

The application for a new trial was manifestly insufficient. The absence of the defendants’ witness would have been good cause of continuance; and the unadvoidable absence of his attorney might have authorized a continuance, if applied for in time. But application must have been made at the proper time; or a sufficient legal excuse shown for the omission. That one of the defendants was absent “ on important business,” when the nature of the business is not stated, and the conclusion rested in the opinion of the party himself, and on his unsupported affidavit, manifestly was not such an excuse.

This conclusion supercedes the necessity of considering the merits of the defence, disclosed in the application for a new trial. And it is deemed proper to abstain from the expression of a definite opinion upon its legal sufficiency; the more especially, as the facts of the case may be supposed to be very imperfectly presented. As presented, however, if the right to a new trial had rested solely on the merits of the defence, it is not perceived that there was error in refusing it, on the whole evidence, before the Court, upon the application.

We are of opinion that there is no error in the judgment; and that it be affirmed.

Judgment affirmed.