McKissick v. Colquhoun

18 Tex. 148 | Tex. | 1856

Hemphill, Ch. J.

This is a suit for a.league of land in the county of Bosque.

The land was originally granted to Sarah Hensley, as a colonist in Robertson’s Colony, by deed dated July 5th, 1835. She conveyed to Wm. H. Steele October 5th, 1835, and he to Ludovic Colquhoun, the appellee, (who was plaintiff below) on Hhe 3d April, 1839. The defendants also claim by mesne conveyance from Sarah Hensley, under the name of Sarah Fisher, viz: by conveyance from the said Sarah to Philip Howard, dated April 25th, 1854. Howard subsequently conveyed to the defendant Scales ; and the defendant McKissick is a tenant of Scales.

The first assignment is, that the Court erred in admitting in evidence the deed from Sarah Hensley to Win. H. Steele, because the same was not proven or authenticated according to law. The deed was executed before J. Gf. W. Pierson as second Judge of the first instance, and was signed by the vendor, Sarah Hensley, by Pierson as Judge, and by two instrumental and two assisting witnesses. The protocol and not the testimonio appears to have been given to the vendee to serve him as evidence of his title. It was admitted that Pierson acted as Judge in 1835, and this raises at least presumption of his authority. The signature of a Judge, Alcalde, &c., acting in place of a Notary, authenticated by two assisting witnesses, has all the force and effect of the signature and seal or rubric of a Notary ; consequently the deed was one which would have been recognized under the laws at the time it was executed, as a public instrument which required no proof of its execution when offered in evidence. (Rones, Instrumento.) But by Act of December 20th, 1836, all deeds of land &c., were required to be recorded. The provisions of this law, and their obscurity and uncertainty, have been the subject of comment in previous cases. (Paschal v. Perez, 7 Tex. R. 357.) In the thirty-fifth Section the law contemplates proof’or acknowledgment of the signature of the signer. In Section thirty-eight, proof, in some contingencies, of the signature of a single witness would be sufficient.* No question was made as to the certificate of Lane, the pro tern. Clerk of Washington County. Had the instrument been a testimonio, and had proof been made of the signature of Pierson certifying as Judge to the correctness of the copy or testimonio, it might become a very serious question whether he was not the signer whose signature was required to be proven under the thirty-fifth Section of the Statute. But that question does not arise in this case. The original or protocol was adduced, and this was signed as well by the vendor as by the Judge before whom, it was passed. The certificate of the Clerk of Milam County, in whose office the deed was recorded, shows that Pierson appeared before him and acknowledged his own signature and also proved the signature of the signer, Sarah Hensley (written, by mistake it is presumed, Mary Hensley.) We have heretofore held (Paschal v. Perez, 7 Tex. R. 358,) that it was not requisite in all cases, that the proof of an instrument for record should be made by a subscribing witness. But admitting that this deed should have been proven by subscribing witnesses, can it be imagined for a moment, that in contemplation and in the spirit of the Registry Laws, the Judge who by law was required to know the contracting parties, either personally or by proof, to reduce their contract to writing, and read it to the parties and their witnesses, and after the signature of the parties, to give authenticity to the instrument by his own signature, with the witnesses of his assistance (Rones, Instrumento) can it be imagined, I say, that the Judge, under such circumstances, is not a subscribing witness ? A subscribing witness may know nothing more of the transaction but the signature of the maker. • The law requires evidence of no other facts. The Judge signed the instrument, and thus attested the fact of the signature of the maker, and he is not the less a subscribing witness because his signature not only attested such fact, but, under the laws then existing, gave the act a force and effect in evidence, which could not be imparted to it by the signature of a merely private witness. There are four witnesses to the act, two instrumental and two of assistance. These must have different offices. Those of assistance are to give to the signature and seal of a Judge (who acts in the place of the Notary) the force and effect which the signature and seal of the Notary would have with, out witnesses. Their office was thus to attest rather the signature of the Judge, than that of a party to the contract; yet their evidence in proof of the signature of the maker would be sufficient to admit the instrument to record. Much more would the evidence of the Judge be competent, who declares in the act itself, that the vendor signed the same before him. The deed was sufficiently authenticated, and there was no error in admitting it in evidence.

No other point has been argued by counsel for appellant. He charges generally, that the instructions given were erroneous,, and that there was error in refusing charges asked by appellant. This arraignment is not sufficiently specific to require a minute examination of the instructions given or refused. We will however briefly consider some of the most important. There was no error in the instruction as to the extent of the County of Milam at the date of the record of the deed from Sarah Hensley to Steele and from Steele to Oolquhoun. This was proven by a witness, the objections of the defendant being, and we think properly, overruled. The boundaries of the county may not have been defined by Statute. There is no-evidence or suggestion that they were. The presumtion is that they were not, otherwise resort would not have been had to-the testimony of witnesses. But the fact that Bosque County, or a portion of it at least, lay within the former county of Milam, must have been judicially known to the Court which had held its sessions for several years in the county before either Bosque or other counties had been taken from its territory. It would not be attributing any great degree of knowledge to the Court,, to suppose it aware of the fact that Milam formerly extended up the Brazos quite beyond the section where this land was situated. There was no error in receiving the evidence or charging as to the extent of the county.

The fourth charge given, was to the effect, that it was not necessary that a deed properly recorded in the county in which the land lies, should be again recorded if the territory be after-wards attached to another county. We are not apprised of any Statute which would require an owner of land, having his deed properly registered in the county where the land lies, to. have his conveyance again recorded as often as by subdivisions and changes the land may fall into a new or different county. Very prudent men may use such precautions. But it is not necessary for the protection of their rights, the first registry being amply suEcient.

There are instructions to the effect, that even if Sarah Hensley were a married woman at the time of her conveyance to Steele, yet this passed the title, if it were made with the assent of her husband, and this assent, from the great lapse of time, must be presumed. The husband of the grantee (if she ever had a lawful husband) appears from the first to the last of these transactions to be more of shadow than of substance. The grant is made to Sarah Hensley. She sells to Steele in 1835, and again under the name of Fisher, she sells to Howard in 1854. declaring the land to have been granted to her as the head of a family. A step-son testifies that she has been known and called by the name of Sarah Fisher since 1850, thus raising the presumption that before that time she was not called by that name. Another witness, Barron, testifies that she was called Fishér at the time she visited the Land OEce of Robertson's Colony in 1835 ; that he understood from public rumor, that she was then the wife of Fisher ; thinks Fisher was with her, but does not remember certainly. This evidence, at best, is but mere rumor and furnishes but very meagre grounds on which to claim that the grantee was disabled by coverture from making a valid sale of the property. But were it admitted that she was the lawful wife of Fisher in 1835, yet after the lapse of eighteen or nineteen years, his acquiesence in the sale to Steele must be presumed. The land was either the separate property of the grantee or it was a portion of the community between her and her husband. In either event, it was not absolutely necessary under the laws in force at the time of the first sale, that his assent should appear on the face of the deed, (Harvey v. Hill, 7 Tex. R. 591.) The husband is not now claiming the land. The wife, in fraud of her previous sale and regardless of its obligations, claims the land and disposes of it again as if she had full right, invoking the aid of the law to support a transaction which is strongly marked with features of injustice and wrong. In support of the title of the first purchaser, and to defeat the wrong, the perpetration of which has been attempted, the presumption of assent arising in ordinary cases from lapse of time, would, under the circumstances, have additional force and strength.

The other points in the case are not believed to require no ■ tice. The sale by a colonist of lands received by him, to the Commissioner of the Colony, is not per se fraudulent and void.

There is no error and the judgment is affirmed.

Judgment affirmed.