Butler v. Dunagan

Wheeler, J. Although it is not so stated in the bill of exceptions, there can belittle doubt that the copy of the power of attorney was excluded on the ground that the original was not properly authenticated to admit it to record. Under the Act of the 5th of February, 1841, (Hart. Dig. Art. 2777,) the proof of hand writing may not have been sufficient, not being made by a subscribing witness. But the power of attorney was acknowledged by the maker before a Primary Judge, who was ex officio a Notary Public, (Act of the 20th January, 1836, Sec. 4, Laws of the Provisional Government,) and that, we think, was sufficient to admit it to record, under the Act of 1841, without other acknowledgment or proof. If it had been recorded upon that acknowledgment, before the Act of 1841, it would have come clearly within the provision of the 20th Section of the Act. (Hart. Dig. Art. 2776.) In terms, the 21st Section applies to instruments thereafter to be made and recorded; but we do not think a literal construction would give effect to the Act according to its spirit and intention. If when presented for record, the deed had been duly acknowledged before the proper officer, it could make no difference whether the acknowledgment was made before or after the passage of the Act. If acknowledged before, it could not have been intended that the acknowledgment should be again repeated. The Act was intended to remove objections to the sufficiency of the registry of deeds, upon such acknowledgments, and to provide for their recording in future. It was a healing and enabling Statute, and ought to be construed liberally. [566] To exclude this instrumentfrom its operation, because acknowledged before its passage, where if before recorded upon the same acknowledgment, it would have been within its operation, would be an extremely narrow and strict construction, and such an one as, in our opinion, would not be in harmony with the legislative intention, and the manifest spirit and intention of the law. We think, therefore, the instrument was sufficiently authenticated to admit it to record. It is objected that the copy was not admissible, because the affidavit of Hill, the agent of plaintiff, is not a compliance with the law providing for the admission of such copies. (Hart. Dig. Art. 745.) If there was any reason to suppose this the ground of the ruling of the Court excluding the evidence, we might affirm the ruling. There ought to be a strict compliance with the Statute, it being in derogation of the Common Law rules of evidence. (Crayton v. Munger, 11 Tex. R. 234.) The affidavit, if made by any person, other than a party to the suit, should exclude the supposition that the party has it in his power to produce the original, which this affidavit does not; it states simply that he, the agent, cannot procure the original. It does not follow that the party could not. But it is evident the evidence was not excluded on that ground ; for the same objection had been previously overruled in the admission of other evidence. Had the Court sustained the objection, it might have been obviated by the filing of a proper affidavit; which it would have been within the discretion of the Court to admit, as we intimated in Crayton v. Munger. (Ib.) Now to affirm the judgment on a different ground from that on which the Court below acted, when it is too late for the party to cure the objection, as he might have done, if the opinion of the Court had not been with him upon that question, would be manifestly unjust; and it would be, in effect, to affirm the judgment by reversing the decision of the Court below. It is further objected that the power of attorney had been [567] revoked by the death of the maker, before the execution of the power by the conveyance to Thorn. That might be a good objection to the admission of the deed in evidence, but not the power of attorney. The Court could not assume, upon the production of the power of attorney, that the plaintiff would not prove by competent means, that there was an interest accompanying the power; or that it was in fact executed before the death of the maker. The only question really presented for revision upon the division of the Court below is, whether the power of attorney was properly authenticated to admit it to record; and we are opinion that it was ; and that the Court therefore erred in excluding it; for which error the judgment is reversed and the cause remanded. Reversed and remanded.