56 Tex. 250 | Tex. | 1882
Upon the trial of the cause in the court below, appellee, as a witness for himself, testified, over the objections of appellant, that he “had been and was. the attorney of the estate of I. T. and J. J. Patrick; the estates are not closed; should be in administration in this (San Jacinto county). Prom strict examination I know the records of Polk county and San Jacinto county do not disclose that said estate has ever been distributed and closed.”
That the contents of judicial records, unless lost or destroyed, cannot be proven by parol evidence, is an elementary principle in the law of evidence.
Whether administration was still open and pending upon the estate of I. T. and J. J. Patrick or not, at the time of the institution of this suit, could only be determined by the production of the original papers and orders of the probate court, or certified or examined copies thereof.
The admission of the evidence objected to was clearly in violation of the rule which requires the production of “the best evidence of which the case, in its nature, is susceptible.” Bass v. Mitchell, 22 Tex., 293; Stafford v.
Another rule of equal importance to that mentioned above is, that the witness should not be permitted to testify as to conclusions, but he must state the facts; and the court or jury are to draw the conclusions. The witness does not undertake to state the facts disclosed by the records about which he is testifying, but, as a conclusion, he states that these records do not show that the estate is closed. If the records, or copies thereof, were produced in court, it - might be a most difficult matter to conclude therefrom whether the estate is still in course of administration, or whether that administration has been virtually closed, either by formal order or otherwise. But however this may be, the court and jury, and not the witnesses, are to deduce the conclusion from the facts in evidence before them.
It may be assumed that the admission of this illegal evidence injuriously affected the rights of the appellants, as it cannot be perceived that the court proceeded upon any other ground in finding entirely against them.
If, as a matter of fact, James H. Patrick failed to comply with the order of the probate court granting his application to purchase the land, in this, that he neither paid the money nor executed his obligations as required by law, then he acquired no title by reason of that order. An examination of the statute under which it was made shows that, as a condition precedent to the vesting title thereunder, the money must have been paid or the obligations contemplated executed. Pasch. Dig., art. 1360. Aside from the statute, the language of the decree under which appellants claim is, “the title to which, of said estate, is hereby adjudged to vest in him fully and absolutely upon his executing the obligations as aforesaid. ”
If, as stated by one of the witnesses, Patrick failed to
James N. Patrick was, however, an heir of the estate, and whatever interest he had in the land passed by reason of his conveyance to Collett and Smith, subject to administration and payment of the debts of the estate.
The judgments (or at least one of them) under which the appellee claims title to the land were not dormant; execution was issued on them within twelve months after the rendition thereof. But as a lapse of about four years is shown between issuance of executions upon the same, it is clear that the judgments did not constitute a lien upon the land in controversy. There is nothing in the facts and circumstances of this case that would exempt it in this respect from the established rule. Bassett v. Proetzel, 53 Tex., 569; Hamilton v. Wheeler, decided at the present term. It therefore follows, that unless administration was pending on the estate of I. T. and J. J. Patrick at the time this suit was instituted, appellants should have recovered the interest that was conveyed by the deed of James N. Patrick to Collett and Smith and mesne conveyances to appellants.
Appellants, having sued for the whole land, could have recovered even an undivided interest. Hutcheson v. Bacon, 46 Tex., 414.
We conclude that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.