Manly v. William B. Culver's Heirs

Wheeler, J. It is not questioned that the deed of gift under which the plaintiffs claim, was an instrument permitted by law to be recorded, within the provision of the statute respecting the proof of recorded instruments. (Hart. Dig. 745; 6 Tex. R. 71.) But it is objected that it was not properly admitted in evidence, because not proved for record by two witnesses, and the seal of the Court was not attached to the certificate of authentication. The law, however, admitted it to record upon proof of its execution by one subscribing witness. (Hart. Dig. Art. 2777.) It is to be observed that the statute (Hart. Dig. Art. 745,) does not prescribe a certificate under seal, or any particular mode of authentication to admit the instrument in evidence ; but only that it shall have been recorded after being proven or acknowledged in the manner provided by law at the time of its registration. [150] It may be a question therefore, whether other proof than the certificate of the Clerk may not be received of the fact of its registration. If so, the proof was made by the deposition of the Clerk who recorded the instrument. This was not the case contemplated by Art. 2768 of the Digest, where the proof is made before an officer other than the Clerk who is to record the instrument. In that case the seal of office of the officer taking the acknowledgment is required to his certificate of authentication in order to admit the instrument to record. But if it be held, on general principles, that the fact of due registration upon the requisite proof must appear by the certificate of the recording officer, attested by his official seal, it does so appear in this case. The Clerk has stated and certified the fact of the requisite proof having been made, the filing of the deed for record, and the recording : these several matters are embraced in one certificate with the seal of office annexed. That must be deemed sufficient. It certainly was not necessary that a separate certificate should be made to each independent fact, when all could be as well embraced in one certificate. We are of opinion that the deed was properly authenticated to admit it in evidence, and it is therefore immaterial whether the other evidence admitted for the purpose of proving the instrument were rightly admitted or not, as the proof was made without it. The recording was only material as it enabled the plaintiffs to introduce the deed in evidence without proof of its execution: it was not necessary to vest in them the title to the property conveyed. The statute of frauds has no application to the case, because possession did accompany the transfer of the title. The possession of Culver and wife was consistent with the right of their infant children, the plaintiffs, who were residing with them, (Hillebrant v. Brewer, 6 Tex. R. 45.) They had not the title, but only the possession in right of the plaintiffs. It is true they hold the possession for the use and benefit of the plaintiffs. But as respected the title they were not trustees. A trustee of a legal estate is one to whom the estate has been conveyed in trust. The title was not conveyed to Culver and wife in trust for the plaintiffs, but directly to the plaintiffs themselves; The question therefore as to how far one who is a bona fide purchaser for a valuable consideration without notice, from the trustee of the legal estate, will be protected even as against the cestui que trust, does not arise in this case. The defendant did not pur [151] chase the legal title, or from one holding the legal title, but from one having the bare naked possession. To bring him within the principle contended for, he must have purchased the legal title: for even the purchaser of an equity is bound to take notice of, and is bound by a prior equity. (2 Story, Eq. Sec. 1502.) The defendant did not even purchase an equity. The bare possession of his vendors, without title, did not empower them to convey either the legal or equitable title, or afford the defendant’s purchase the protection given to an innocent purchaser of the legal title. If he were a purchaser from the plaintiffs’ vendor, the case might, perhaps, be different. But the mere possession of his vendors, without title, did not enable them to make a good title, as against the true owners, even to a purchaser for value, who was ignorant of the ownership or title of the plaintiffs. It is of no consequence, that the slave had once belonged to Culver, as he had parted with his title and possession to the plaintiffs’ donor before the making of the deed of gift, and there is no evidence impeaching the validity of the donor’s title at the time of making the gift. It was within the discretion of the Court to permit the witness to he recalled even after the argument had been commenced, and this action of the Court cannot be assigned as error. We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.