Short v. Wade

| Tex. | Jul 1, 1860

Roberts, J.

The statute provides that “ copies of the records of all public officers and courts of this State, certified to under the hand and seal (if there be one) of the lawful possessor of such records, shall be admitted as evidence in all cases where the records themselves would be admissible. ” (O. & W. Dig., Art. 468.) Under this it has been held that after a patent had been issued by the general land office to an assignee of a land certificate, copies of the transfers upon which it had been issued to the assignee, certified to under the hand and seal of the commissioner of the general land office, were admissible in evidence. In such case the “ commissioner must judge of the right of the assignee, by the inspection of the assignments, and these remain in the land office, as evidence of the authority under which the patent was issued to the assignee. ” They become thereby records of his office and he is their proper custodian. (Mason v. McLaughlin, 16 Tex. R., 28.) The question in this case is, are the copies of such assignments, certified to previous to the issuing of the patent, in like manner admissible under this statute. We think not. The government has not recognized their authenticity by the commissioner having acted upon them; they are not yet evidences of the authority of any action taken upon them by the commissioner; they are still under the control of the party who owns the land upon which the certificate may have been located, and may be withdrawn by him at pleasure from the general land office; and they are not, therefore, the records of this public officer, in the sense in' which that term is used in the statute. His possession of them, for the time being, is lawful, but it is so because it is permitted by the owner, and not because of any exclusive right, which would make him the custodian of them as records of his office, The reason upon which the case of Mason v. McLaughlin is founded is not applicable to this case. The appellants could have withdrawn these assignments from the general land office and established them as other transfers of certificates, and deeds to land, are established when offered in evidence in court. It might often happen that the only reason why a patent had not been issued was that the commissioner was not satisfied of the genuine^ ness of the assignment lodged in his office, and if his certified copy were held to be admissible in court to provehheir genuineness, it might happen that his certificate would be used as evidence to verify in court that which was doubtful in his own office.

We are of opinion that the court below did not err in deciding that these copies of the transfers were inadmissible.

Judgment affirmed.