13 Tex. 85 | Tex. | 1854
This suit was brought by the heirs of Garretson to recover from the defendants one third of a league of land. The defendants set up in defence a purchase from one Smith, the administrator of Garretson. The first evidence offered by them is a covenant, as follows, i. e.:
“JAMES SMITH. [L. S.]”
The defendant offered to prove by oral testimony, that there had been an order of sale; that the return of the sale had been made to the Court; and that the same had been approved by the said Court; which evidence was rejected by the "Court; and there was a verdict and judgment for the plaintiffs ; a motion for a new trial made and overruled, from which the defendants appealed.
The first assignment of error, that the Court compelled the -defendants to read the whole transcript in evidence, of all the .matters and things of record in relation to the succession of the said Thomas Garretson, when they only offered to read two pages of the same, is not supported by the record. It appears that the whole transcript was read by the defendants, without any ruling of the Court, that it should be done, or -offer on their part to read only a part of it.
The second one is that the Court erred in rejecting the evidence offered, to prove that the order for sale had been made -by the Probate Court, the return of the sale by the administrator, and the approval and confirmation thereof by the Probate Court. It appears from the record, that Smith, the administrator, was called by the defendants. He testified that
It is always a question addressed to the discretion of the Court, to determine whether the basis has been laid by proving the loss or destruction of a record, to let in proof that such record once did exist. This discretion is not an arbitrary, capricious discretion, but must be a reasonable conclusion from the evidence. But, unless we were fully satisfied from the evidence, that the Court below erred in the exercise of its discretion, we would not be authorized to reverse its decision. Parol evidence to supply record testimony should be received with great caution. In such cases the temptation to fraud and perjury would be very great, and the difficulty, if not the impossibility, óf a conviction for perjury, and of rebutting such evidence, would be an encouragement to an unscrupulous witness. It is a rule of law, that affirmative evidence is entitled
The record presents nothing else for our consideration, and the judgment is affirmed.
Judgment affirmed.