McCelvey v. Cryer

FLT, Associate Justice. This is an action of trespass to try title instituted by appellants to recover a one-sixth interest in 1280 acres of land patented to Humphrey Beckley. ■ The court instructed a verdict for appellees. . A patent from- the State of Texas to Humphrey Beckley was introduced, and appellants then sought to introduce the original deed. purporting to have been executed by Humphrey Beckley to Samuel Jordan, executed in February, 1839, and conveying to said Jordan a military bounty warrant or certificate for 1280 acres of land. This deed was acknowledged before a notary public, who used a private seal, because he had no public seal. This deed was met with the objection that it was not properly authenticated for record; that the officer before whom the acknowledgment was taken was not authorized to take acknowledgments at that time, and that there was no seal attached. The deed was excluded. By an act passed on January 19,1839, and which took effect from passage, no one was permitted to take acknowledgments or make proof of deeds and other conveyances except the County Court, or the chief justice of the same, or the clerk in whose office the instrument was to be recorded. All conflicting laws were repealed. This act was in effect at the time the acknowledgment to the deed in question was taken, and under the provisions of that act it was invalid, because taken before an officer not authorized .to take acknowledgments, and of course was improperly recorded, unless some subsequent law has validated its registration. On February 5, 1841, an act was passed validating the registration of all deeds and conveyances that had been registered before the passage of the act, “any obscurity or conflict in the existing laws to the contrary notwithstanding.” Hart. *440 Dig., art. 2776. In the case of Waters v. Spofford, 58 Texas, 121, it is held, that the Act of February 5, 1841, had reference to acknowledgments and records made before its passage, as well as to records made after that time upon prior acknowledgments; but this is evidently a misconception of the scope of the statute, which merely validates the registry of deeds made prior to the adoption of the act, and then provides for the registration of instruments “hereafter to be made and recorded.” There is no provision validating the acknowledgments of instruments made anterior to the passage of the act, the whole object and intent of the law being to render legal the registry of instruments made before the passage of the act, and to provide for the manner of acknowledgment and proof and proper registration of instruments executed after its passage. Hart. Dig., arts. 2776, 2777. When the deed from Beckley to Jordan was recorded in 1851, it was improperly and illegally done. However, on February 9, 1860, it was enacted by the Legislature, that “any grant, deed, or other instrument of writing for the conveyance of real estate or personal property, or both, or for the settlement thereof in marriage, or separate property, or conveyance of the same in mortgage, or trust to uses, or on conditions, as well as any and every other deed or instrument required or permitted by law to be registered or recorded, shall be held to have been lawfully registered, with the full effect and consequence of existing laws; provided, the same shall have been acknowledged by the grantor or grantors, before any chief justice or associate justice, or clerk of the County Court, or notary public, in any county within the late Republic or the now State of Texas, or judge of the department of the Brazos, or any primary judge, or judge of the first instance, in 1835 or 1836, or proven before any such officer, by one or more of the subscribing witnesses thereto, and certified by such officer, whether such acknowledgment or proof shall have been made before any such officer of the county where such instrument should have been recorded or not.” Pasch. Dig., art. 5021. In article 5022 it is provided, that “all such instruments which shall have been acknowledged or proven before any officer named in the foregoing section of this act, and which shall have been afterwards recorded in the proper county, or certified copies thereof, shall be evidence in the courts of this State, as full and sufficient as if such acknowledgment had been taken, or proof made in accordance with existing laws.” As said in Butler v. Dunagan, 19 Texas, 565, such validating statutes should be liberally construed, and we are of the opinion that the registry made in 1851 of the conveyance of Beckley to Jordan was validated by the act in question. Such being the case, it was error in the District Court to reject the instrument as not being properly recorded. The circumstances seem to indicate that the land was patented by virtue of the certificate sold by Beckley to Jordan. The deed in question was also admissible as appearing to be an ancient instrument. Being over fifty years of age, having been recorded *441 for over forty years, and having come from the proper source, the mere fact of the erasure of the name of “Whiting” and the insertion of the n.ame of “Jordan,” would not throw such suspicion upon the instrument as would necessitate explanation as a prerequisite to its admission as an ancient instrument. The deed should have been admitted, and any question raised by the evidence respecting its genuineness should have been submitted to the jury. Stribling v. Atkinson, 79 Texas, 162; Holt v. Maverick, 5 Texas Civ. App., 650; 23 S. W. Rep., .751. When an instrument purporting to be an ancient one is attacked, and the question of its genuineness is made an issue by the testimony, the question, under proper instructions, should be submitted to the jury for its determination. Pasture Co. v. Preston, 65 Texas, 445; Warren v. Fredericks, 76 Texas, 652; Ammons v. Dwyer, 78 Texas, 639. Delivered October 31, 1894. In an effort to show a common source of title, appellants offered in evidence certified’ copies of a certain power of attorney from certain heirs of Samuel Jordan to Cowan, and of a deed by Cowan, by virtue of his attorneyship, to L. F. Boberts. These instruments were not properly authenticated, and the originals had not been legally recorded, and we are of opinion that they should have been excluded as testimony. This question does not arise in the cases cited by appellants. It is held in those cases, that void and inoperative deeds through which a party claims may be introduced by his opponent to show common source of title; but the question presented in this case is one not as to the validity or invalidity of any link in the title showing common source, but it is one as to the manner of proof Burns v. Goff, 79 Texas, 236. We have seen no authority for relaxing the rule of practice as to the admission of certified copies of recorded instruments as embodied in article 2257 of the Bevised Statutes in establishing common source of title. It is probable, however, that this question and others raised may not arise on another trial. The judgment of the District Court will be reversed and the cause remanded. Reversed and remanded.