Hill v. Taylor , 77 Tex. 295 ( 1890 )

ACKER, Presiding Judge.

—H. W. Hill brought this suit against R, M. Taylor on the 8th day of September, 1886, in the usual form of trespass to try title to an undivided interest of 320 acres of land in two surveys described in the petition.

The defendant answered by general denial, plea of not guilty, and the three, ñve, and ten years statutes of limitation.

There was verdict for defendant, upon which judgment was rendered, that plaintiff take nothing by his suit and pay all costs, and he appealed.

The plaintiff offered in evidence a certified copy from the records of Bexar County of a deed from Emeline Lawton, dated February 21,1842, and filed for record in Bexar County on the 2d day of August, 1843, to which defendant objected upon the ground that the deed 'had not been properly acknowledged and certified for record by an officer authorized by the laws of the Republic of Texas to take such acknowledgment. The objection was sustained, and that ruling is assigned as error.

It appears from the copy offered that the execution of the deed was acknowledged before and certified by “ an associate judge of the Sixth Judicial District in the State of Maryland”on the day of its date, and that the vice consul of the Republic of Texas for the port of Baltimore attached to the deed his certificate of the official character of the officer whotoqk and certified the acknowledgment.

The statute of the Republic of Texas providing for the acknowledgment of the execution without the Republic of conveyances of land within the Republic in force at the time the deed from Emeline Lawton purports to have been executed and acknowledged, was as follows: “If such-grant, deed, or instrument executed abroad shall be acknowledged or proved by two subscribing witnesses before any circuit or supreme judge or chancellor of the United States of Forth America, certified by him, with the certificate of the chief magistrate of the nation as to the official character of him taking acknowledgment or probate and the great seal of the United States thereto annexed; or if so acknowledged or proved before any judge of a superior court of record, or in any such court of any other nation or kingdom, and certified by such judge, or the record thereof exemplified, and either so counter-certified by the chief magistrate or sovereign of such other nation or kingdom under the great seal, or by the consul of this Republic or minister resident there, the same shall be admitted to record, and shall be good and effectual, as aforesaid,' from and after registration. ”

Appellant contends that under this statute “ deeds executed abroad should be acknowledged before a judge of a superior court and certified by the resident consul of the Republic.”

The language of this law is very peculiar, and just what it means is difficult of ascertainment. It may, however, be conceded, as contended by appellant, that the expression “or if so acknowledged or proved before any judge of a superior court of record ” includes the judges of the superior courts of the several American States, and yet the ruling of the trial court in excluding the instrument must be sustained, for there is nothing in the certificate or elsewhere in the record tending to show that the person who certified to the acknowledgment of the execution of the deed was a judge of a superior court of record. This court can not judicially know that “an associate judge of the Sixth Judicial District in the State of Maryland ” was a judge of a superior court of record on the 31st day of February, 1843.

Appellant insists that when a deed has been registered for twenty years the probate of its execution is conclusively presumed to be proper.

We believe it to be settled that the benefits accruing from the registration of a deed are invariably dependent upon its proper registration. Without proper acknowledgment and proper certificate of such acknowledgment of the execution of a deed, its registration would not constitute notice, nor would any lapse of time make admissible as an ancient instrument a certified copy from the record of such deed.

What we have said disposes of the first and second assignments of error. The plaintiff offered in evidence the certified copy of the deed from Emeline Lawton, together with the testimony of the grantor to the execution of the original by her, “as evidence of an equitable claim of right to the land,” to all which defendant objected “because there was no-proper affidavit of the loss of the original instrument to allow parol evidence of its contents and its execution.” The objection was sustained, and this ruling is complained of as error.

The affidavit of the loss of the original deed was made by the attorney for plaintiff, and states that he was employed by plaintiff to procure the original title papers to the land and to institute this suit; that he has “prosecuted diligent inquiry in all sources where the original of the copy of the deed of Emeline Lawton to W. H. Daingerfield and J. L. Generes, conveying one undivided sixth part of surveys ¡Nos. 40 and 44 in the name of Jacob H. Lawton, dated on the 31st day of February, 1843, a certified copy of which deed is on file in the above entitled cause, without effect; that such original deed has been lost or destroyed, and can not be found to be used on the trial of this cause.”

The certified copy of the deed was secondary evidence, the admissibility of which was dependent (1) upon the proper registration of the original, and (3) upon the proper affidavit of the loss of the original. We have seen that, because of the imperfect proof of the acknowledgment of the execution of the original, its registration was not proper and the certified copy was not therefore admissible, even though a proper affidavit of the loss of the original had been made. The proposed testimony of the grantor as to the execution and contents of the deed was also secondary evidence, which was inadmissible until the predicate therefor had been established by filing the proper affidavit of the loss of the original deed. It has been said that the statute making secondary evidence admissible upon the affidavit of the loss or destruction of the original being in derogation of the common law rules of evidence, should be strictly complied with (Butler v. Dunagan, 19 Texas, 566); and that if the affidavit is made by any other person than a party to the suit, it should exclude the supposition that the party offering the evidence has it in his power to produce the original. Crayton v. Hunger, 11 Texas, 234; Butler v. Dunagan, supra; Hooper v. Hall, 30 Texas, 158. It has also been held that such affidavit must show “that there has been diligent search and inquiry made of the proper person and in the proper places for the lost deed; that the loss must be proved if possible by the person in whose custody it was at the time of the loss if such person be living, and if dead, application should be made to his representatives and search made among the documents of the deceased.” Vandergriff v. Piercy, 59 Texas, 372. Tested by these authorities, the affidavit in this case is fatally defective. It is not shown that inquiry was made of the vendees, or if dead of their representatives; nor does the affidavit exclude the idea or supposition that the plaintiff may have been able to produce the original deed.

The only diligence shown by the affidavit is that the affiant had “prosecuted diligent inquiry in all sources where the original, * * * without effect.” It is not even stated that the inquiries were prosecuted in sources where there was any reason to expect that information relating to the original could be had. We think the third assignment is not well taken, and that the court did not err in excluding the evidence.

The fourth assignment of error is: “The court erred in excluding the certified copy of deed from Emeline Lawton to W. H. Daingerfield and ' John L. Generes, dated 21st of February, T842, when offered as evidence of an equitable title or claim in plaintiff to the land in controversy in connection with his original deed from Emeline Keys (formerly Lawton) confirmatory thereof, dated June 22, 1887, and in excluding said last named deed in such connection.”

For the reasons already given we have seen that the certified copy of the deed of February 21, 1842, was not admissible in evidence, and it could not be made so by offering it in connection with other evidence, however legitimate and pertinent such other evidence may be. Offering the two instruments in connection with each other could not have the effect to remove the objections to the inadmissible one, but would necessarily have the effect to render the other inadmissible also, although it may be clearly admissible if offered disconnected from and independent of the inadmissible instrument. We think the court did not err in ex-eluding the two instruments when offered in evidence together and in connection with each other.

The fifth assignment of error complains that the court erred in excluding the testimony of Emeline Keys (Lawton) proving the execution and contents of her deed of February 21, 1842, to Daingerfield and Generes as a lost instrument. What has been said in disposing of previous assignments disposes of this. There was no proper predicate laid for the introduction of this secondary evidence.

The sixth assignment of error is substantially the same as the fourth. Questions raised by remaining assignments of error are immaterial, as they could not control the disposition of the case.

Our attention has not been called to any error that we think would justify reversal, and we are of opinion that the judgment of the court below should be affirmed.

Affirmed.

Adopted May 20, 1890.