Smith v. Gillum , 80 Tex. 120 ( 1891 )

The land involved in this suit was originally granted to Asahel Savery by the government of Coahuila and Texas on April 13, 1835. Mrs. Harriet Smith, the appellant, who was intervenor in the court below, claims the land as devisee under the will of her father, the grantee.

The appellees deraign title from and under an act of sale executed in the State of Louisiana on January 5, 1837, by said Savery to one Albert Emanuel, before Wm. Boswell, a notary public in and for the city and parish of New Orleans, and two witnesses — Edward Barnett and Francois Moitan — and through a regular chain of conveyances thereunder. No question is raised as to any deed subsequent to the act of sale, consequently there will be no occasion for further reference to any other link in appellees' title.

The ground mainly relied on for a reversal of the judgment is the alleged erroneous admission by the court in evidence of certain copies of said act of sale over appellant's objections.

An affidavit was filed by her in this cause assailing in terms the copy of the conveyance or act of sale to Albert Emanuel by Savery, recorded in Jefferson County, September 10, 1851, and denying its execution. The affidavit was doubtless, intended to apply to the original act of sale and was so treated on the trial. Two copies of this authentic act were introduced in evidence by appellees. One was made on February 6, 1837, about one month subsequent to its execution. The other is dated June 14, 1886, and was offered as an authenticated copy of the act of sale and as an examined copy of a record of a public officer of another State. It was shown by the witnesses Alphonse and Maurice Barnett that the first was a copy prepared by notary William Boswell, before whom the original act of sale was executed. They testified that they knew him intimately; that he was a notary public in the city of New Orleans. They knew all the parties to the instrument except Savery, and they were all dead. They found and examined the book containing the original acts of sale required to be kept by the law of that State. This copy was correct in all things except that it makes the grantor's name read "A. Savary" instead of "A. Savery." The witnesses referred to recognized the signatures of the parties, except Savery's, to the original act of sale, with which they testified they were familiar. This copy was recorded in Jefferson County, September 10, 1851. The registry or record of authentic acts under the Louisiana law, it was shown, is now in the custody of Martin Voorhis, a notary public of that State. The testimony of these witnesses established the fact that they had carefully examined and compared the copy dated June 14, 1886, certified by said Voorhis, the custodian of the originals, and that it was a correct copy. This copy was introduced in evidence as authenticated under the laws of the United States. The objections urged to the copy first mentioned are: "That the land is titled to 'Asahel Savery,' and the recitation in the copy is that it is made by 'Asal Savery,' and it is signed 'A. Savary;' showing upon its face that it was not executed by the original grantee, and there was no proof of the execution of the original act of sale by 'Asahel Savery,' and therefore it was not admissible as an ancient instrument."

It may be proper to observe in this connection that we do not understand it to have been offered as an ancient instrument. That the original grant is to Asahel Savery and the signature to the authentic act is "A. Savary" does not necessarily show or imply that the latter was not executed by the grantee. The objection is one going to the identity of the person executing the act of sale with that of the original grantee from the government. Whatever variance or dissimilarity there may be arising upon the face of the instruments mentioned between the name of the grantor "Asal Savery" in the body of the act of sale and his name of "Asahel Savery" as contained in the grant from the government, and his signature of "A. Savary" to the former, it seems to us is sufficiently explained by the evidence in the record before us, and it should remove any reasonable suspicion, if any, which might arise as to the identity of the grantor in said act of sale with the grantee from the government.

The name of the grantor in the body of the authentic act is not written or spelled by him, but it is written by the notary, before whom the parties appeared, under article 2231 of the Civil Code of Louisiana, to pass or execute said sale. The signature is spelled "Savery," as in his application as a colonist to the commissioner and as in the will in evidence under which appellant claims. Another circumstance from which the jury may have inferred that the act of sale was executed by the grantee from the State is that the former instrument describes by the same metes and bounds the land as contained in the original grant. It also recites "all of which documents are hereunto annexed." The grant in the Spanish language is shown to have been in the possession of Louis Davis at his death in June, 1876, to whom the land was conveyed by the vendees of Emanuel in 1852, and with accompanying title papers it was delivered to appellee Gillum in 1886, and produced on the trial of this cause.

These facts, in the absence of any proof by appellant controverting them, were sufficient upon the issue of identity to support a finding in behalf of appellees.

As said in Chamblee v. Tarbox, 27 Tex. 144, "similiarity of name alone is ordinarily sufficient evidence of identity of a purchaser in a chain of conveyance." Commenting upon this case in Robertson v. Du Bose, 76 Tex. 6, it was said that "in the absence of evidence casting doubt upon the identity of a party to a conveyance of land we think it ought to be held sufficient in every case, and the jury, if instructed upon the subject at all, ought to be told so."

In the case under consideration there was no proof casting doubt upon the identity of Savery, and the language quoted is peculiarly applicable.

The objection to the copy introduced as authenticated under the Act of Congress of the United States of March, 1804, is that it was "not recorded in Jefferson County until after the death of Asahel Savery, and it does not appear to have been made by the official custodian of the original, but is in the handwriting of one of the plaintiffs in this suit, and it casts suspicion on and changes in a material respect the second original, in that in the former the signature is spelled A. Savary," etc. There can be no doubt in this case, we think, that the execution of the original act of sale was proved beyond the most rigid requirements of the common law which was in force under the Act of December, 1836, in this State, in its application to evidence. The rule is elementary that where a deed or other written instrument is attested and all of the witnesses are inaccessible, in such case the evidence of its execution will be sufficient by making proof of the handwriting of the witnesses, as is done where such witnesses are shown to be dead and the handwriting of the party executing it is not necessary to be proved.

Discussing the effect of a similar certified copy of an authentic act introduced in evidence in the case of Watrons v. McCrew, 16 Tex. 513, it was held that the copy having been authenticated under the Act of Congress of March 24, 1804, it was deemed sufficient proof of its genuineness and authenticity, and judicial notice was taken of the law recognizing the Civil Code of Louisiana, and that the act of sale in evidence duly attested makes proof that the original act remained an archive in the office of the custodian of such authentic acts.

The same character of instrument, the original, it was said in Smith v. Townsend, Dallam, 571, remained in the possession of the notary or his successor who was the lawful custodian thereof, and a copy of it made by such depository was regarded as proof of the original. This is upon the ground that the original is not deliverable to the parties under the Civil Code of Louisiana providing for the execution of said authentic acts. This official registry required to be thus kept by the notary in that State belongs to that class of instruments in writing of which it is said, when the proof is by a copy, an examined copy duly made and sworn to by any competent witness is always admissible. 1 Greenl. Ev., sec. 685.

The execution of the original having been established as before explained, and the authenticated copy having received the sanction as evidence of the cases cited, there was no error in the admission in evidence of the copy mentioned.

The error next assigned is the action of the court in excluding a mortgage claimed to have been executed by Savery to one Johnson, and the papers in a suit to foreclose said mortgage by Johnson, together with the judgment of dismissal in said suit. And also its action in excluding the testimony of one Stockholm to declarations of Savery that he owned the land. This evidence was offered as a circumstance to show that the land was claimed by Savery. It appears from the bill of exceptions that the objections to this evidence were that "the mortgage was not filed among the papers of the suit and three days' notice given the appellees; its execution was not proved at common law; and the testimony was irrelevant.

We think these objections were properly sustained. There was no attempt made to prove the execution of the mortgage, and it was not admissible as a recorded instrument. The appellees were not parties to the suit between Johnson and Savery and could not be affected by it. The alleged declarations made to the witness Stockholm were not in the presence of the appellees or parties claiming the land, and were made after Savery had parted with title thereto, and could not be used in disparagement of the title of subsequent purchasers. Thomas v. Herring, 27 Tex. 282 [27 Tex. 282].

Complaint is made of the omission of the court below to instruct the jury that the burden of proof as between appellant and appellees was on the latter to establish title. The suit was originally brought by appellees against the Texas New Orleans Railway Company. Subsequently the appellant intervened, claiming the land as heir and devisee of her father, A. Savery, the original grantee. The court charged the jury in substance that the burden of proof was on the plaintiffs (appellees) to show title as against the defendant.

At the instance of the intervenor the jury were also told that if they believed Asahel Savery, the original grantee, executed the deed of January 5, 1837, to Albert Emanuel, they would find for the appellees; but if they found that this instrument was not executed by him, the legal effect of the will of Savery in evidence was to vest title to the land in intervenor.

The court further instructed the jury that plaintiffs (appellees) having introduced a copy of the act of sale made before a notary in Louisiana on January 5, 1837, and the intervenor having filed an affidavit attacking the same, the affidavit would not be evidence; that the burden was on the intervenor to prove the act of sale to be a forgery. Such is the correct rule. The appellees having made a prima facie case of the genuineness of the instrument the burden of proof was cast upon the intervenor to rebut this. Cox v. Cocke, 59 Tex. 524 [59 Tex. 524]; Robertson v. Du Bose, 76 Tex. 6.

The court charged the jury at the request of the defendant the Texas New Orleans Railway Company that they "must believe front the evidence that the act of sale purporting to have been made on the 5th January, 1837, by one Savery, or Savary, to Albert Emanuel, was in fact and in truth made and executed by the saute identical Asahel Savery to whom said league of land was originally granted," etc., before they could find for plaintiffs in this case, and that unless they so believed they would find for the defendant and the intervenor, whether said instrumental witnesses' signatures are proved to be genuine or not.

These instructions we think presented in proper form the issues in the case and afford no ground for complaint upon the part of appellant.

The judgment we think should be affirmed.

Affirmed.

Adopted March 3, 1891.