Emanuel v. Gates

PARDEE, Circuit Judge, (after stating the facts.) The only ruling in the court below on the trial of the case while the jury were at the bar to which seasonable objection was made, and exception taken,, was the admission of a certified copy from the records of Cherokee county, Tex., of a deed from Joseph Hertz to Jacob Snively, conveying the land in controversy, dated August 5, 1835, and purporting to have been duly recorded in Trinity county, state of Texas, on the 2d of July, 1856, and in Cherokee county, state of Texas, on the 15th of July, 1856, which deed plaintiffs have attacked as a forgery, as a circumstance to go to the jury in connection with the other evidence. : The recitals in the bill of exceptions distinctly state tbat there was proof tending to show the existence of a genuine deed. R. W. B. Martin testified that the records of deeds of Trinity county were de-: stroyed by fire in 1872, and that he had seen the deed from Joseph' Hertz to Jacob Snively, conveying the G. Sosa league in controversy,' on record in Trinity county, or in the archives of Nacogdoches. Defendants also read in evidence, without objection, a warranty deed from Jacob Snively to Jesse Duren, dated May 24, 1856, conveying 'the league in controversy and other lands, which deed was duly attested and authenticated, and recorded in Trinity, Cherokee, and Angelina counties in June, 1856. It was shown that, in 1857, Jesse Duren conveyed a portion of said league to several parties, and in the 'same year Duren and Daniel had a tenant on a portion of the land, and that portions had been continuously occupied since then under ¡the Snively and Gates titles; also, that Jacob Snively claimed the said league under Joseph Hertz, and that such claim was open and notorious; that the grantees under the Snively title had paid the taxes in 1859,1860, and portions of other years. Defendants also proved peaceable and adverse possession under deeds duly recorded of the tracts claimed by them, and payment of taxes for more than 10 years prior to the filing of the suit. It was also shown by the testimony of J. R. Burnett that the original of said deed was not among the title papers of the defendants; that he had made diligent search and inquiry for the same; that Jesse Duren, to whom said Snively had conveyed said league, died about 1865; that inquiry had been made of his administrator and son-in-law, and an unsuccessful search made for the said deed; that he had learned from said administrator that Jesse Duren, in the year 185S or 1859, had conveyed said league to Daniel Daily, Dr. E. Curry, and James D. English, all of whom formerly resided in Houston county, [775] and were well known to witness; that said Daily, Curry, and English, were dead; that no administration was pending in the estate of either; that witness Avas informed and believed that said Daily, Curry, and English conveyed said league to other parties; and that he has diligently inquired for said deed of all the living vendees holding or claiming under the same, so far as known to him, and so far as he could ascertain, and also of all persons who would likely have the same in their possession, and could likely inform him of its whereabouts, if not destroyed, but has been unable to find the same. Witness also made diligent search for said original deed among the archives at Hacogdoch.es, and among the records of Houston, Trinity, and other counties, and at all places where he had any reason to beHeve the same could be found, and had not been able to find the same; and that Avitness has exha,usted every reasonable source of information knoAvn to him, or of which lie had been advised, to find said deed, but had failed to find it. Witness further testifies that Joseph Hertz and Jacob Snively are dead. It seems also to have been proved that n. C. Mayer, plaintiff’s agent, and one of their attorneys, informed defendant’s attorneys that he had seen the said Snively deed, or a copy of it, among the papers of Judge Daniel, formerly of Cherokee county; that defendants’ attorney, with permission, examined Judge Daniel’s papers, and did not find the deed, hut was informed that plaintiffs’ said agent and attorney had previously examined the same, and had got some paper from them. These facts and circumstances being in evidence, and the same showing notorious assertion of title and possession under the deed, and the payment of taxes, and that such deed was recorded, it was, in our opinion, clearly admissible to permit the certified copy of the deed, in question to go to the jury as one of the circumstances in the case. 2 Greenl. Ev. § 558; Holmes an Coryell, 58 Tex. 680; Brown v. Simpson’s Heirs, 67 Tex. 231, 2 S. W. Rep. 644; Bounds v. Little, 75 Tex. 316, 12 S. W. Rep. 1109; Crain v. Huntington, 81 Tex. 614, 17 S. W. Rep. 243; Waggoner v. Alvord, 81 Tex. 366, 16 S. W. Rep. 1083; Stramler v. Coe, 15 Tex. 213; Deen v. Wills, 21 Tex. 644; Sowers v. Peterson, 59 Tex. 220; Mays v. Moore, 13 Tex. 88. It is not so clear that the said document was not admissible as an ancient document. In the case of Holmes v. Coryell, supra, it is held that, when the affidavit of the loss of a deed 30 years old is filed, a certified copy from a record of like age, with strong corroborating circumstances, is admissible in evidence, notwithstanding an affidavit has been filed impeaching the genuineness of the original. We do not think that the copy was rendered inadmissible because the name of the grantor was spelled “Joseph Hirtz” and not “Joseph Hertz.” As the certified copy of the deed was only admitted as a circumstance of the case, such different spelling would affect only the weight to he given the document as a circumstance, not its admissibility. Besides, there was no evidence casting doubt upon the identity of the party. See Lyne v. Sanford, 82 Tex. 58, 19 S. W. Rep. 847. The other errors assigned, complaining of the rulings of the court in regard to refusing to instruct the jury as to whether Albert Ernanuei was a purchaser for value without notice of the title or claim of [776] Jacob Snively, and, also, as to tbe common source of title, and because there was no charge on the question of forgery, cannot he considered, as no seasonable objection seems to have been made while the jury were at the bar. The fourth assignment — that the court erred in overruling the plaintiffs’ motion for a new trial — presents a question which, it is well settled, cannot he reviewed upon writ of error. Railway Co. v. Heck, 102 U. S. 120. For these reasons, it follows that the judgment of the circuit court should be affirmed; and it is so ordered.