50 Tex. 57 | Tex. | 1878
The court did not err in refusing to admit in evidence the deed of trust from John H. Eowland to appellant, on the bare faith of the certificate of the clerk that the grantor appeared before him and acknowledged its execution and that the deed had been duly recorded. The clerk’s certificate of the grantor’s acknowledgment of the deed is sufficient, under the statute, to admit it to record; and, when duly recorded and filed among the papers of a • case, with proper notice, &c., it is admissible in evidence, without the necessity of proving its execution, on the trial of the case in which it is sought to be used, unless suspicion is cast upon its genuineness by the oath of the opposing party. But the certificate of an acknowledgment was not intended to, and does not, of itself or in connection with the certificate of record, prove the due execution of the deed, or render it admissible in evidence, either by the common law or by the statute. It is not, indeed, a common-law certificate, but altogether statutory in its character, and can serve no other purpose than that authorized by the statute. And certainly the statute would not require that the deed should be filed with the papers for three days before the trial, and notice thereof given the opposite party, unless it was intended that the deed should not be admitted in evidence, although acknowledged and recorded, unless these additional requirements of the statute were also complied with.
We are cited by appellant, in support of his proposition, to the case of White v. Holliday, 20 Tex., 679. But this case, instead of sustaining him, repudiates and denies the doctrine
Unquestionably, the court, in the case of White v. Holliday, supra, holds contrary to what seems to be the current of common-law authorities, (1 Greenl. Ev., sec. 569,) that the execution of a deed by the grantor may be otherwise shown without calling or accounting for the absence of the subscribing witnesses. And we think our statutes concerning conveyances and regulating the registration of deeds strongly tend to favor this construction. We would, therefore, have no hesitancy in following this case if such was the question presented to us. But the deposition of Rowland, the grantor of the deed, was not taken to prove the execution of the deed. On the contrary, the existence and due execution of the deed are assumed, both in the interrogatories and in the answers. The existence of the deed is assumed as a mere predicate for drawing out the testimony which it was intended to elicit by the interrogatories. The deed was not before the witness, or definitely referred to or identified, either in the interrogatories or answers. The court did not, therefore, err in holding them inadmissible to prove its execution.
Ho authority whatever has been cited in support of the proposition, that the execution of a deed maybe proved without accounting for the absence of the subscribing witnesses, by the grantee. Certainly the common-law rules of evidence do not sanction it, and we know of no rule or principle in our statutes or practice approving it, or from which it can be deduced or maintained. There is certainly a very wide distinction between the proof of the execution of the deed by the party who made and is bound by it, and the party to whom it is given, and who is claiming under it. Of course we are not to be understood as holding that there may not be cases in which the testimony of the grantee may not be admissible. What we say is, that by the common law, which
If appellant was in fact taken by surprise by the exclusion of the original trust deed for failure to prove its execution, and the withdrawal from the court-room of the subscribing witness after it was apparent to him that his testimony might be of essential importance to appellant, he should unquestionably have supported his application by his affidavit. It is neither the duty of the court nor of the opposite party to advise or assist one in the preparation of his case, or to relieve him from the consequence of his oversight and blunders. Indeed, the court should not do so, unless it is apparent that its refusal to interfere would result in the doing of injustice or in permitting an undue advantage to be gained by the one party over the other, or in sanctioning trickery or fraud. The decision of a question of this character must, in a large degree, be intrusted to the judge before whom the case is tried. Unless his ruling is clearly erroneous, it should not be disturbed. We cannot see that such is the fact in this case. There may be strong suspicion that the subscribing witness, wTho, no doubt, was in sympathy with appellees, may have been actuated by an improper motive in absenting himself from the court-room at the time he did; but his doing so is not shown to have been prompted or brought about by appellees. We cannot, therefore, say the court should have held them responsible for it, in order to excuse appellant for his own laches. One of the appellees wTas examined on the subject, and had it been made to appear, or had the court believed, that appellees or their counsel were in any respect in fault, the continuance would no doubt have been allowed, or a new trial granted.
It also is to be observed, in connection with this proposition, as well as those previously discussed, that a copy of the deed had been admitted in evidence without objection, which
It may be true that the verdict is not such as should have been given by the jury; but the motion for new trial does not warrant appellant in complaining of it. (Eules of Dist. Court, 6, 7.)
Other errors were assigned, hut, as they are not presented in the brief, we need not consider them.
Judgment is affirmed.
Aeeirmed.
[Justice Bonner did not sit in this case.]
