Cavit v. Archer

Bonner, Associate Justice. This was an action of trespass to try title for a league of land situated in Milam county, patented to George W. Glasscock, brought by the plaintiff and appellant, Daniel Cavit, against the appellees, J. P. Archer and others. . Judgment was rendered against the plaintiff) from which he prosecuted this appeal. The plaintiff) in his pleadings, specially deraigned his title to the land in controversy, a necessary link in which was a deed from the patentee (Glasscock) to one Desmond. Having made, as he contends, proper affidavit of the loss of this original deed, he offered in evidence a certified copy from the records of the office of the clerk of the County Court of Milam county of that which purported to be a deed exe [169] cuted by Henry Millard as attorney in fact for George W. Glasscock to Desmond, of date January 10, 1842. To the introduction of this certified copy, defendants interposed several objections, and the copy was excluded by the court. Under the disposition we make of the case, it is necessary to consider but one of these objections. The deed purported to have been proven up for record by Thomas Dillard, one of the subscribing witnesses, as shown by the following certificate of authentication appended to it: “Republic of Texas, ) County of Milam.) “Before me, Hath aniel G. Raymond, special deputy for Arthur Eldridge, clerk of the County Court of Milam, for this purpose personally came and appeared Thomas Dillard, one of the witnesses to the foregoing instrument, who acknowledged his signature as such and made oath that he saw George W. Glasscock sign the same as the attorney in fact for Henry Millard for the purposes therein expressed. “Given under my hand and seal, there being no seal of office, this first day of June, A. D. 1843. “H.-C. Raymond, “ Special deputy for Arthur Eldridge, Cleric.” There was no evidence offered of the execution of the orig- • inal deed, except this copy. In commenting upon the statute which permits, under certain regulations, certified copies of deeds to be used as evidence in place of the originals, (Paschal’s Dig., art. 3716,) this court has said that 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., 234; Butler v. Dunagan, 19 Tex., 566.) Although liberality of construction should be indulged iu regard to mere clerical mistakes and omissions in the record made of instruments at an early day in Texas, yet we do not think that such defect, in substance, as affirmatively appears in the affidavit under consideration, should be held to be a sufficient compliance with the statute providing the mode of [170] authentication for record, or that the deed was a duly recorded instrument “after being proven or acknowledged in the manner provided for by the laws in force at the time of its registration.” (Paschal’s Dig., arts. 3716, 4973, 4974, 4976.) [Opinion delivered November 11, 1879.] The deed upon its face, as shown by this copy, does not appear to have been made by Glasscock in person, but, for him,, by his attorney in fact, Henry Millard; yet the subscribing witness swears that he in fact saw George W. Glasscock sign the same as the attorney in fact for ITeury Millard, a party in whom it is not pretended was the legal title. To permit such record to be held valid, would virtually override the statute and supply by intendment its positive requirements. The original deed not having been properly recorded, the certified copy was not admissible as evidence, and the court did not err in excluding it. (Holliday v. Cromwell, 26 Tex., 188; Deen v. Wills, 21 Tex., 642.) The want of competent evidence to establish a material link in plaintiff’s chain of title being fatal to his suit, it is not necessary to pass upon the other alleged errors assigned. Judgment affirmed. Aeeibmed.