20 Tex. 143 | Tex. | 1857
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.
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
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.