DocketNumber： No. 130.
Judges： Dayis, Brooke
Filed Date： 12/21/1916
Status： Precedential
Modified Date： 11/14/2024
"Know all men by these presents that I, John Andrews, sell, transfer, or bargain, and deliver, in the county of Houston and republic of Texas, unto William Penn, in the county and republic aforesaid, the within claim or certificate, for the sum of seven hundred, thirty-eight and 50/100 dollars in hand paid, the title whereof I will always support and defend against my heirs, administrators, or administratrix, as
"Given under my hand and seal this 1st day of November, 1839. John Andrews. [Seal.]
"Signed and delivered in the presence of us:
"Test: B. F. Wright,
"C. N. Nelson."
The certificate of acknowledgment to this purported transfer is as follows:
"The State of Texas, Travis County.
"Before me, N.C. Raymond, a notary public in and for said county, duly commissioned and sworn, personally appeared B. F. Wright, who is represented to me as the identical B. F. Wright whose signature appears as a witness to the transfer hereto annexed, who upon his oath says that he was present and saw John Andrews sign the same as his voluntary act and deed, and that he acknowledged that he did so for all the uses, purposes, and consideration therein set forth and expressed; that he signed the same as a witness at the request of said parties thereto.
"Given under my hand and notarial seal at Austin this 3d November, 1856.
"[L. S.] N.C. Raymond,
"Not. Pub. Travis Co."
Then follows:
"General Land Office, Austin, Texas, November 3, 1856.
"I. S. Crosby, commissioner of general land office of the state of Texas, hereby certify that the foregoing, with the erasures, are correct copies of the originals now on file in this office. In testimony whereof I hereunto set my hand and affix the seal of said office, the day and date last above written. S. Crosby, Com'r.
"Filed for record this 23d Feby., 1859.
"B. S. Mangum, Clk.
"The State of Texas, County of Trinity.
"I hereby certify that the foregoing deed of conveyance is duly recorded in my office, in Book B, pages 527 and 528, in the County Records for Deeds, etc.
"In testimony of which I have hereunto set my hand and seal of office at Sumpter, 25th March, 1859.
"Bryant S. Mangum, Clk. Co. Ct.
"Filed for record August 9, 1875, and recorded in Deed Records Trinity County, Tex., Book B, pages 175 and 176."
When the transfer of the certificate from Andrews to Penn was offered in evidence by the plaintiff, the defendants objected, on the ground that the certificate of acknowledgment was defective in this: That the notary used this language, "represented to me," instead of "proven to me," as required under the law at that time, and, further, that the description in the transfer of the certificate is insufficient, in this, that it does not state the number of the certificate, the date of its issuance, or the quantity of land to which the holder of it would be entitled.
The trial court overruled these objections, and allowed this instrument to be introduced in evidence; but in his conclusions of law the trial court held that this instrument was not properly authenticated for registration, and that the registration of this instrument, if properly authenticated, was insufficient to charge purchasers under the heirs of John Andrews with constructive notice of any rights to the land in controversy in William Penn or others holding under him. This conclusion of the trial court is divided into two parts: (1) This instrument was not properly authenticated; and (2) if properly authenticated, was insufficient to charge purchasers under the heirs of John Andrews with constructive notice of any rights to the land in controversy in William Penn, or others holding under him.
Directing our attention now to the first part of the trial court's conclusion: The language used by the notary "represented to me." We understand that:
"All that is required in respect to the frame of the certificate is a substantial compliance with the laws under which they are made. When substance is found, it is neither the duty nor inclination of courts to jeopardize titles, in any way depending upon them, by severe criticism upon their language." Cow. H. Notes, pt. 2, note 254 to page 247.
Now, if the language used in this certificate of acknowledgment "represented to me" is a substantial compliance with the law, then this certificate of acknowledgment should be held sufficient. The law required at the time this certificate of acknowledgment was made that the subscriber must be personally known to the officer or proof of a subscribing witness must be by some one *Page 384 personally known to the officer taking the proof to be the person whose name is subscribed to the instrument as a witness, or must be proved to be such by the oath of a credible witness, which fact shall be noted in the certificate; and the object of the law on this subject was to avoid and prevent just what is reflected by this certificate of acknowledgment, not a stranger who represents himself to be a particular person, nor a stranger who is represented by another to be a particular person, but the certificate must reflect the satisfaction of the notary that the one whose acknowledgment he is taking is the identical person whose name is subscribed to the instrument. Does not the language used "represented to me" preclude the idea that he was "known," and also that he was "proven to me"? Does it not strongly show that the notary himself was not satisfied? We think that it does, and that the same is not a substantial compliance with the law, and that the trial court did not err in holding that the transfer of the certificate was not properly authenticated for registration, and this holding dispenses with the necessity of passing upon the second part of the trial court's conclusion of law, that the registration of this transfer of the certificate was insufficient to charge purchasers under the heirs of John Andrews with constructive notice of any rights to the land in controversy in William Penn, or others holding under him; but we believe this holding of the trial court also to be correct.
We are of the opinion, under the facts and findings of the trial court, that T. B. Leach was an innocent purchaser for value of the 200 acres of the John Andrews one-third league.
T. B. Leach testified by affidavit:
"That he paid S. T. Robb a valuable consideration for said 200 acres of land, and paid to him the full consideration recited in the deed, in money and in work, and that at the time he bought said land he had no actual knowledge of any conveyance of the land certificate by John Andrews to William Penn or any other person; on the contrary, affiant believed when he bought said land and paid for the same that he was getting a good title; that he paid the full fair value for said land at the time of his purchase thereof."
At the time of the purchase of this 200 acres by T. B. Leach from S. T. Robb the said Robb then had in his possession the patent to the land, which had been delivered to him by the heirs of John Andrews when he purchased the survey from them.
There is no testimony in the record contradicting this testimony, and the trial court in his findings of fact found that T. B. Leach was an innocent purchaser for value without notice of the transfer of the certificate.
The record discloses that on November 4, 1868, one R. A. Clifton, as sheriff of Trinity county, Tex., executed a deed to H. N. Jones and S. Y. Smith, and which deed was made pursuant to a purported valid sale under three executions issued upon purported valid judgments rendered against A. J. Frisby and Margaret Frisby in favor of F. C. Roberts in the county court of Trinity county, Tex. The body of this sheriff's deed is as follows:
"By virtue of three certain executions issued out of the county court of Trinity county in favor of F. C. Roberts v. A. J. Frisby and Margaret Frisby on three certain judgments rendered on the 6th day of October, 1868, and directed and delivered to me, R. A. Clifton, as sheriff of Trinity county, Texas, commanding me of the goods and chattels, lands and tenements of said Margaret Frisby to make certain moneys in said writ specified, I. R. A. Clifton, sheriff as aforesaid, did, upon the 9th day of October, 1868, levy on and seize all of the estate, right, title and interest which the said defendant Margaret Frisby on the 9th day of October, 1868, so had of, in, and to the premises hereinbefore described, and on the first Tuesday of November, 1868, within the hours prescribed by law, sold said premises at public vendue in the county of Trinity at the door of the courthouse thereof, having given public notice of the time and place of such sale, etc., and whereas at said sale the said premises were struck off to H. N. Jones and S. Y. Smith for the sum of $322.00, and in consideration of the premises aforesaid and the payment of said sum convey to said H. N. Jones and S. Y. Smith all that certain tract or parcel of land lying and being situated in the county of Trinity and state of Texas, known as the Penn tract of land, lying on the Trinity river in said county, the metes and bounds of which are as follows: [Here follow metes and bounds] — containing 1,020 acres of land, more or less."
This deed was recorded March 8, 1870, and re-recorded December 1, 1875.
It was agreed upon the trial of the case that all of the records of Trinity county were destroyed by fire in November, 1872, and all court records, except bills of indictments, were destroyed by fire in 1876. The record further discloses that H. N. Jones and S. Y. Smith, either themselves or through their trustee, H. M. Trueheart, during the year 1870 sold all of the land purchased by them at sheriff's sale, and that J. S. Williams and William H. Guion, two of the purchasers, rendered the land for taxation from the year 1877 down to and including the year 1887, and paid the taxes thereon for said years.
On November 12, 1861, A. J. Frisby and wife, Elizabeth Frisby, conveyed to Mrs. M. McDonald this one-third league. Then Mrs. Elizabeth Frisby died, and A. J. Frisby and Mrs. M. McDonald were married, and after the marriage of A. J. Frisby and wife, Margaret Frisby, this land was levied upon as the property of Margaret Frisby, and sold by the sheriff of Trinity county, R. A. Clifton, to H. N. Jones and S. Y. Smith, on November 4, 1868, under three purported judgments in favor of F. C. Roberts and against A. J. Frisby and his wife, Margaret Frisby, and after this sheriff's sale A. J. Frisby and his wife, Margaret Frisby, sold this land to J. Lyle Smith, as administrator of B. F. Wright's estate, and agent of O. L. Taylor. The deed from A. J. Frisby and wife, Elizabeth Frisby, to Mrs. M. McDonald, recites a *Page 385 cash paid consideration of $5,051. There was no lien reserved on the land in this deed to secure a deferred payment. The deed from A. J. Frisby and wife, Margaret Frisby, to J. Lyle Smith, was offered in evidence by defendants in error as an outstanding title against plaintiff in error. None of the records pertaining to the three judgments, nor the judgments, nor the executions under which the sheriff levied upon and sold this land were offered in evidence. The trial court found this sheriff's deed to be an outstanding title, and we copy this part of the trial court's findings:
"Neither of the three judgments recited in the deed executed by Clifton as sheriff of Trinity county, nor the executions recited therein, or certified copies thereof were offered in evidence, but I conclude from the recitals in said sheriff's deed, and the proof of the destruction of the records of Trinity county, as aforesaid, that said judgments in fact existed against the said A. J. Frisby and wife, Margaret Frisby, were valid judgments and were rendered as recited in the sheriff's deed, and that the executions were issued thereon, as recited in the sheriff's deed, and the sale legally made thereunder."
Plaintiff in error contends that the trial court erred in admitting this deed in evidence, and in holding that it showed an outstanding title, for the following reasons, as set out in plaintiff's second, third, fourth, fifth, and sixth assignments of error:
(1) Because said deed is not admissible in evidence as against the plaintiff, nor are the recitals therein admissible against the plaintiff, because said deed and the recitals therein are hearsay as to plaintiff, and he is not bound by said deed nor the recitals therein.
(2) Because the said deed, and the recitals therein, are insufficient to show that any valid judgment was ever rendered against the said Margaret Frisby, or that the various legal requirements necessary to a valid sale by said sheriff were ever complied with.
(3) Because the recitals in said deed affirmatively show that the sale of said land was made under three executions out of the county court of Trinity county, on three judgments, and that there was no notice given of the time and place of sale under either of said judgments, and the recitals in said deed show that said sale, if any was ever made, was not made under any one or either of said judgments, and the recitals in said deed show that said sale, if any was ever made, was not made under any one or either of said judgments at one and the same time, and was therefore invalid.
(4) Because the recitals in said deed affirmatively show that no notice of sale was ever given of the time, place, and manner of said sale, and the same is therefore invalid.
(5) Because the proof shows that Margaret McDonald bought the land in controversy from A. J. Frisby and wife, Elizabeth Frisby, and executed her notes in payment of said land, for the sum of $4,550, payable to B. F. Wright and O. L. Taylor, and at the time of the sheriff's sale and deed the said notes were outstanding and a valid lien against said land, and that the superior legal title and the equitable title to said land was in the holders of said notes, to secure the payment of same, and that the sale by Frisby and wife, Margaret Frisby, to Smith, vested the legal title in Smith, as administrator of the estate of B. F. Wright, and Clement Penn, O. L. Taylor and wife, Francina Taylor, and that plaintiff in error acquired the title of B. F. Wright, Clement Penn, O. L. Taylor and wife, Francina Taylor, and thus now holds the legal title.
(6) Because the evidence showed a complete and perfect chain of title in plaintiff, and failed to show any title in defendants.
The records of the proceedings of the county court of Trinity county leading up to final judgments in favor of F. C. Roberts and against A. J. Frisby and wife, Margaret Frisby, and the judgments, and the issuance of executions, and the executions, if they be in existence, are necessarily the best and the only competent evidence to establish a valid sale by the sheriff, under execution, and if they be in existence, the recitals in a sheriff's deed under execution will not be sufficient to show a valid judgment. Terrell v. Martin,
But in this case the record discloses that the minutes of the county court and the deed records of the county were destroyed by fire nearly 40 years before the trial of this case. It has been held that, where the records of a county have been shown to have been destroyed by fire, the recitals in the deed, which was an ancient instrument, were sufficient in themselves to show that the sale was made under the order of the probate court. Williams v. Cessna,
In the case of Giddings v. Day,
"Proof of the destruction of the records of the justice court from which the execution purported to issue have been made, we are of the opinion that after the lapse of more than 30 years the existence of the judgment and the execution recited in the sheriff's deed ought to be presumed."
We are therefore of the opinion that the recitals in said sheriff's deed, under the facts of this case, were sufficient to establish the presumption that valid judgments were rendered against A. J. Frisby and his wife. Margaret Frisby, and that a valid sale, under executions properly issued, was made. The sheriff's deed recites:
"That by virtue of three certain executions issued out of the county court of Travis county * * * having given public notice of the time and place of such sale," etc.
We see no reason why the sheriff could not levy on the land to satisfy three executions, the plaintiff and defendants in each execution being the same, and if proper notice was given of the sale under only one of the executions, the sale would be valid if all other necessary requisites had been complied with. *Page 386
We are also of the opinion that there is nothing in the contention that the two notes which A. J. Frisby and his wife, Margaret Frisby, took up by deeding this land to J. Lyle Smith were a lien upon the land. There is nothing in the record which discloses such fact, except that we might infer this from the recital in the deed from A. J. Frisby and wife, Margaret Frisby, to Smith, that the notes were of even date with this deed; but the deed from A. J. Frisby and wife, Elizabeth Frisby, to M. McDonald, recites a consideration of $5,051 paid.
The record discloses that J. Lyle Smith, as administrator or trustee, nor any one claiming through or under him, ever asserted any claim whatever to this land until 1913, when plaintiff in error purchased this land from Amanda Caroline Wells and others; and the trial court found that:
"Except for the execution of the deed by Francina Taylor and her husband, O. L. Taylor, and Clement Penn, to A. J. Frisby in 1851, I do not find any assertion of claim to the land by the heirs of William Penn, subsequent to the death of the latter until the execution of the conveyance by the said Amanda Caroline Wells and others to plaintiff in 1913."
We are therefore of the opinion that this court erred in reversing and rendering this case, and the motion of defendants in error is granted.
The judgment of this court is set aside, and the judgment of the lower court is affirmed.