Clifton v. Lilley , 12 Tex. 130 ( 1854 )

Wheeler, J.

The errors assigned which are deemed to require notice, are the rulings of the Court. 1st. In admitting the Clerk’s certificate of the appointment of the plaintiff as guardian, as evidence of his representative character; 2nd. In admitting parol evidence of the contents of the deed of gift from the ancestor of the plaintiff’s wards; 3d. In the charge to the jury in relation to the statute of limitations.

To the first of these objections it must be answered that there was no plea putting in issue the plaintiff’s representative character; and it was not necessary, therefore, on his part, to adduce evidence of his right to sue in that character. (Cheatham v. Riddle, Adm’r, Supra.) The ruling of the Court complained of was therefore immaterial.

The ground on which it is supposed that the secondary evidence of the contents of the deed of gift, was improperly admitted, is, that the absence of the original was not sufficiently accounted for. Having been shown to have been •once in the possession of the subscribing witness, Williams, in the State of Tennessee, it is insisted that, in the prosecution of the search, inquiry should have been made of him. “What degree of diligence, (says Greenleaf) in the search is “ necessary, it is not easy to define, as each case depends “ much on its peculiar circumstances; and the question, '“ whether the loss of the instrument is sufficiently proved, to “ admit of secondary evidence of its contents, is to be deter. “ mined by the Court, and not by the jury. But it seems, “ that, in general, the party is expected to show that he has, '“ in good faith exhausted, in a reasonable degree, all the “ sources of information and means of discovery which the “ nature of the case would naturally suggest, and which were '“ accessible to him. It should be recollected that the object “ of the proof is merely to establish a reasonable presumption “ of the loss of the instrument; and that this is a preliminary “ inquiry addressed to the discretion of the Judge. If the “ paper was supposed to be of little value, or is ancient, a “ less degree of diligence will be demanded, as it will be aided '“ by the presumption of loss, which these óircumstances “ afford. If it belonged to the custody of certain persons, or “ is proved, or may be presumed to have been in their pos- ■“ session, they must, in general, be called and sworn to ac- '“ count for it, if they are within the reach of the process of “ the Court.” (1 Greenl. Ev. Sec. 558.)

The deed of gift in question was ancient. There is no evidence of its having been seen within twenty years. After the division and distribution of the property of the ancestor of the plaintiffs, the deed of gift ceased to constitute their only evidence of title, and became of comparatively little value to them. The only source of information, which, it is to be supposed, existed in this country, was exhausted by the search among the papers of the deceased father of the plaintiffs.. Williams, in whose possession the instrument was last seen, if living, was not within the reach of the process of the Court. He could not be reached by a subpoena, duces tecum; nor-could he be compelled, without a resort to the Courts of the-country of his domicil, to produce or deliver to the plaintiffs, the instrument, if in his custody. It, therefore, was not necessary to call on him by szibpaena duces tecum, or otherwise, to produce the paper, for the reason that the Court had no-authority over him, and could not enforce obedience to its process. Moreover, he had no interest in the preservation of' the paper, and it is not probable that it remained in his .custody after the purposes for which it had been made and delivered to him, had been answered by the contemplated division and distribution of the property; or, if it was suffered to remain in his custody, that, having no interest in it, he should have preserved it during the lapse of twenty years. Its-absence, under the circumstances was, we think, sufficiently accounted for, to warrant the admission of secondary evidence of its contents.

But if it were otherwise, this deed of gift was not the only-evidence of title in the plaintiffs, and need not have been produced or relied on by them. For all the purposes of this suit,, their evidence of title was ample without it. The partition- and distribution of the property of Isham Cherry, after his decease, among his children and grandchildren in the State of • Tennessee, acquiesced in by his heirs, was sufficient evidence of the title of the plaintiffs to the portion allotted and delivered to them, without reference to the deed of gift, under which the-distribution was made. (Nimmo v. Davis, 7 Tex. R. 26.). Indeed, the plaintiffs’ prior possession, which does not appear to have been legally divested, was sufficient prima facie evidence of title, to enable them to recover as against the defendant, who does not appear, by the statement of facts, to have introduced any evidence of title in himself. (Davis v. Loftin, 6 Tex. R. 497.)

In respect to the charge of the Court relative to the statute of limitations, it may suffice to observe, that the plaintiffs were infants when the right of action' accrued, and they do not appear ever to have had a guardian appointed until within less than two months before the institution of the suit. Consequently, their right of action could not have been barred by the statute, and there was no error in the instruction of the Court in its application to the case.

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

Judgment affirmed.