Majority — SWAYNE J.
p. 264McPhaul v. Lapsley.
Syllabus
1. An affidavit filed under the act of the legislature of (Texas, approved May 13th, 1846, — requiring an affidavit as to the fraudulent character of- ani instrument of writing, properly recorded, and filed among the papers of the cause, the purpose of requiring the affidavit being to relieve the party meaning to offertbe instrument introduced from the burden, after he has filed it among the papers in the cause, of proving its execution, unless the other side swear that it is- a forgery — is properly rejected when not filed within the time prescribed-by the act.2. A testimonio executed, in 1832, by the proper Mexican authorities, of a power of attorney for the conveyance of lands, is within the recording acts of Texas.
3. Such a testimonio,-under Spanish law, and the adjudications,of the Supreme Court of Texas, is considered as a second original, and-of equal validity with the first, and is admissible in evidence though not recorded.
4. Evidence of a person who was not the keeper Of the archives, nor in any way officially connected with the office to which they belonged, and which was oft’ered to prove that such a testimonio was not a copy of the protocol (this not being produced), though the witness had in his hand photographs of certain pages' of the protocol which did conform in other respects than that of signature and date with the testimonio, and when it was not offered to follow the evidence up in any way, held prop-, erly rejected; the.,testimonio being more than forty years old, much litigation haying existed.on .the title made under it; it never having been previously questioned; it having been received in a forrner case, by this pourt, as valid, and important rights having grown up on the faith of it; and the instrument being now questioned, not by the parties to it, but by a defendant setting up a hostile title which he failed' to establish.
Error to the Circuit Court'for the Western District of Texas; the case being thus:
p. 265
The State, of Texas has made a succession of statutes, on the subject of reóording .'instruments, relating to the titles of real estate. They aré thus:
1. .An act of 20th December, 1836, after requiring all persons who claim lands, by deed, lien, or any óther color of' title, to record their instruments of title in the clerk’s office of the county, where the land lies within twelve months from, the 1st April, makes it, by the thirty-fifth section, the duty of the, clerk to record all deeds, conveyances, mortgages, aüd other liens, and all other instruments in writing, provided that one of the witnesses shall swear to the signature of the signer, or. he, himself , shall acknowledge the same.
The fortieth section enacts that no deed, conveyance, lien,' or other instruments respecting lands, shall take effect as to' third persons until proved and recorded.•
2. An act of 10th May, 1838, repealed the limitation of twelve ■months, in the act of 1836, just referred to.
These acts are cited.by the Supreme Court of Texas, in Guilbeau v. Mays[16] with the statement that subsequent legislation. had-not materially changed them.
.The subsequent legislation is thus:
3. An act of January 19th;, 1839, makes it the duty of County clerks to record all “ deeds, conveyances, mortgages, ,and other liex s affecting the title to land; provided- that one of the subscribing witnesses shall swear to the signature of 'the signer, or foe, himself, shall acknowledge the same.before the clerk,” &c. All laws in conflict are repealed.
. The act further provides in. its second section (and the provision bears specially upon this casé), that “copies of all deeds, ¿•c., when the originals remain in the public 'archives, and were executed in conformity with the laws., existing at the-se dates, duly certified by the proper officer, shall be admitted, to record where the land lies.”
4.' An apt of May 12th, 1846, makes clerks of the county court recording officers for their several counties.
The fourth section makes it their duty to record “all
p. 266
deeds, mortgages, conveyances, deeds of trust, bonds, covenants, defeasances, or other instruments of writing of and concerning any lands.”
.The- . fth , section makes similar provision for marriage contracts, powers of attorney, and official bonds.
The seventh section direct? the acknowledgment to be •made “by .-the grantor or person loho executed the instrument' in writing.”
The eighth section provides for proof being made by the subscribing witnesses.
The ninth section enacts that when the witnesses are dead, or.their residence unknown, or when they reside out of the State, the instrument may be proved by evidence of the handwriting of the “ grantor or person who executed the same, and-of one of the subscribing witnesses; and this proof is to be made by"-‘two or more_disin teres ted witnesses.’”
This' act was to take effect July, 1846, and all prior laws in conflict with it are repealed.
.In A.D. .1858, commenting on the fourth section, above cited, as descriptive of the instruments to be recorded, the Supreme Court of Texas, in Henderson v. Pilgrim,[16] say:
“ It is the obvious policy to require - all instruments concerning land to be recorded in the proper county.”
■ And the court, therefore, held that ah assignment of amortgage was within'the provision of the. act.
In the same1 year it was held that a covenant for title, though a mere executory contract, was within the law.[17]
So far as to the recording acts.
Another statute, that of May 13th, 1846,[14] having for its frequent effect to change the burden of proof as existing at common law, is as follows :
“ Every instrument in writing (properly recorded), shall be admitted as evidence without the necessity of proving its execution, provided that the party who wishes to give it in evidence shall
p. 267
file tbe same among the papers of the suit three days before the trial, and give notice to the opposite, party, of such filing, and unless such opposite party, or some other person for him, shall within one day after such notice, file an affidavit stating that he believes, such instrument to be forged.”
. With the different statutes about recording instruments of title, and this last-quoted act-as to the effect, in the m'atter of evidence, of filing among ¿the papers of the suit of any ^instrument “properly recorded,’1 Lapsley, on the 31st. of March, 1863, brought tréspass to try title against N- A. McPljaul and eight other persons, in -the court below, ,to recover possession of eleven leagues of land described.
■ The plaintiff' claimed under a power of attorney, said to have been executed by Thomas Vega, José Maria Aguerre, and Rafael Aguerre, to Samuel May Williams, dated the 5th of May, 1832^
McPliaul answered, pleading an outstanding title to one league in a certain Fleming, but junior in date to the title of the plaintiff, which he mentioned bad been perfected, as he alleged, by a title from Thomas de la Vega.
Appended to MePhaul’s answer was the statement of de la Vega that he had sold this league, in 1860, to McPhaulj and that this was within the eleven leagues claimed by Lapsley, and he asked to be made a party to defend his title warranty, and prayed for a decree confirming the title t¿ said defendants.
This application was never allowed by the court.
Subsequently to this, on the116th January, 1872, Lapsley filed among the papers of the cause. (,giving notice to the other side, on the'same 16th, that he had done so), a paper th us’described: •
“A testimonio of a power of attorney from Thomas Vega, José Maria-Aguérre, and Rafael Aguerre, to Samuel May Wil liams, dated the. 5th of May, 1832, the said testimonio being executed by Juan Gonzales, with his proper attesting witnesses, and duly recorded in the counties of- Falls and McLennan, after being duly proved.”
The reader not familiar with the Spanish law, prevale'
p. 268
until 1886, in what, is now the State of Texas — a region till that date a portion of Mexico, itself formerly a-colony of Spain — may not know exactly what' á testimonio is., Fol’ any such it may be stated that in Spain and her colonies, deeds, contracts, and. powers of attorney are executed before a regidor, a public officer,'a sort of notary or alderman, exercising quasi judicial power. The parties appear before him accompanied by a certain number of-their neighbors as “instrumental witnesses.” The parties state the matters betweep them. The officer-makes • a minute of the terms stated. .He then enters in a book the formal agreement. This i^ thp protocol. He then furnishes to the party in interest a,similar .document. This is a testimonio.
’ ' What common-law lawyers would call the contract itself, but what lawyers of Spajn and her colonies call the protocol of the contract', remains with the notary apud acta; like .the original of a will_in a surrogate’s'office. Thb testimonio is delivered to the parties, as the surrogate gives letters.testamentary preceded bv a 'transcript of the will.
The so-called testimonio,/filed in this case,,was in Spanish,- and when translated into English ran thus:
“ Second seal two reals f 'ordh&.two years 1832 and 1833.
“ In the city of Leona Yicaria,'on the 5th day of the month of ■May, in the year .1832, before me, citizen Juan Gonzales, regidor (alderman) of the honorable council of this ci.ty, and acting alcadi (mayor) therein, and in its jurisdiction, during the indisposition of the proper officer who officiates in-the treasurer’s office, no secretary being allowed him according to the terms of the law, and- ir- the presence of the witnesses who will be named at the close hereof, personally appeared, citizens Dr. José Maria Aguerre, Thomas Yega, and Rafael Aguerre, residents of this city, well known to me, and declared that, in the most complete form which may be required by law, they grant, give over, and concede unto Mk-Sanruel May Williams, a resident of the city of. Austin,; full power-, as much as may be required and as may be necessary ,-in law, especially, in order that in the names of these appearers, and' in representation of their own. persons, rights, and actions,’so far as is allowed by the colonization law of the
p. 269
24th March, 1825, he may be able to proceed, and may proceed according to lfis judgment, to the sales of the tractaiojf land which, on the 14th June, 1830, the ■ supreme governW of' this State granted to them, the appearers.”
The document having given the power of sale, concluded-thus:
“Thus have they granted and signed it in presence of these witnesses, citizens Antonio Espinosa, Rafael de Leon, and Francisco de la Fuente, Gonzales, residents of this city.
Thomas Vega,
Jose Ma. Aguerre, Eaeael Aguerre. .
“I attest:
Juan Gonzales.
“Copy from the original, with which it agrees, the day of its .execution; given on two 1 useful ’ pages of paper,' of the second .stamp, conformable to law. All of which I, the undersigned judge, officiating -with' those assisting me accordihg to law, • hereby attest.
“Juan Gonzales.-'
“ Witnesses:
Jose Nazo Ortiz, .
J. M. Moral.”
Annexed to the testimonio were certain- affidavits, on which it was recorded, in McLennan County, as shown by tbe certificate bf the proper officer, on 7th September, 1856 (twenty years after its date), and again in same county, on 22d September, 1858.
Li Palls County, 6th October, 18,59.
In Williamson County, 15th October, 1859. -
Among the affidavits on the testimonio was one by J. N, Seguin, made on 3d September, 1856, proving the'handwritiug of Juan Gpnzales, by whom the testimonio ór copy was made, and of-his assisting .witnesses,.Moral ahd Ortiz;, and that these parties, if living, were residents of Saltillo, jn the State of Coghuila.
There was also an affidavit from Gonzales himself, made on the 13th July, 1857, testifying that the testimonio was
p. 270
executed by him, át the personal request of José, Maria Agu erre, Rafael Agú erre,, and Thomas Vega, and in their presence; .that the signature “ Juaii Go'nzalés ” is his genuine signature, officially signed as regidor of the corporation of Saltillo, and second-alcalde in turn, in thé year 1832, as expressed thérein;. and that the signatures of Ortiz and Moral, who signed ás assisting."witnesses, in his' preseuce, were their genuine signatures; that Thomas de la Vega executed a certain other power of ..attorney before him to said S. M. Williams, on 28th April,-1832, and. that' the said Thomas Vega, who was a pai;ty to this testimonio, was one and the same person; that'he knew of no other Thomas Vega, or Thonias dé la Vega, in the city of Saltillo, or any other part of Mexico.
' Through a deed made oh.this power of attorney; and other-conveyances mot disputéd, the.plaintiff made a title apparently. regular, if,the power was. genuine.
■ Previous to the trial, which ,qame oh, February 5th, 1872, all the'defendauts except McPhaul were, with the'plaintiff’s consent, dismissed.
On the 3d of February, while the case was a trying, a-certain Sim'onMussina,-representing-himself to be ‘‘attorney of .Thomas de la'Vega,”-filed an affidavit'that the testimonio was, “ as he verily believed, a forged -instrument.”
The plaintiff moved to strike this affidavit from the files as made out of season;-thé statute requiring it should be made within, one day after notice of filing the document sought to be used, and the affidavit not having been' made until many days afterwards.
• This motion the court granted.
Thé testimonio, therefore, stood" without any affidavit against its genuineness, and if “ properly recorded,’’ was entitled, under' the already quoted.- act of May 13th, 1846, to. be used “without the necessity of provingit's execution.” But the question whether it' was “ properly recorded ” remáined.
' Qn the .trial the plaintiff; assuming, of course, thht it was, offered it in- evidence without proof of its. execution; 'and
p. 271
;the court, under the defendant’s exception, received it. Being thus in evidence, the defendant offered one T. J. "Walker, to show that it was a forgery. -The bill of exceptions said:
“Upon the trial, &c., the defendant introduced in evidence a witness, T. J. Walker, and offered to show the jury that in the year 1868 ho went from Austin, Texas, to the city of.Saltillo, Mexico, formerly called Leona Yicario, in Coalruila, and that-he carefully examined the book of'protocols in the office of the secretary of the ayuntamiento of the said Saltillo, and that he found in the book of protocols for the years 1832, 1833, an original protocol or matrix of a power of attorney in the Spanish language, of date May hth, 1832, from José Maria Aguerre to Samuel Majr Williams, giving said Williams the power to sell the land which the government had-granted to Thomas de la Yega and Bafael do Aguerre and José Maria de Aguerre, to wit, eleven 1 cagues each; that said protocol or original has not to it the signa'■■re or pretence of the signature of any one or person except José ■¡.a de Aguerre and Juan Gonzales; that the name of neither <■ ,'ael de Aguerre or Thomas de la Vega, nor any toitnesses, is found c. said protocol or original he examined; that in said protocol book aforesaid, and of date April 28th, 1832, he found an original protocol of a power of attorney, signed by José Maria de Aguirre or Aguerre, and Thomas de la Vega and Juan Gonzales, and with assisting witnesses Ortiz and Moral; that this power is to Samuel M. Williams; and that in said book of protocols, from the power of attorney of the 27th of April, 1832, to the power of the 5th day of May, 1832, inclusive, there were seven leaves and no visible evidence of any mutilation of the-book; that there- are no protocols of any power of attorney.from either Maria do Aguirre or Aguerre, or Thomas de la Yega, to anyone in said seven leaves, except the two named above; that, he has in his hands, now in court, photographic copies of the said seven leaves of the said book, which show exactly what he states.”
To the admissibility of these facts in evidence the plaintiff objected, and the court sustained the objection, to which ruling the defendant.excepted.
The plaintiff derived title, under the power already mentioned to Samuel .May Williams, from a person who in some
p. 272
parts of his title-papers was styled Thomas Vega and sometimes Thomas de la Vega.
Thus, it appeared-—
' 'That' when Williams, as attorney,-applied- in 1833, for a title of personal possession, he described himself as “attorney of Jose-.Maria Aguerre, Rafael Aguerre, and Thomas Veg'a, inhabitants of the town of Leona Vicaria;”
.That when-Lesassier, alcaide of the town, granted the title, h.e described the eleven leagues as “ denounced by the attorney o-f Thorpas he-fa.Vega;”
/That when-the surveyor m,ade his-return,-he said he had executed ijt,“ by virtue of your decree for the attorney of Jhbmas de la Vega;'” ■
• That in the petition of José Maria Aguerre he declared it made “ on .bis own behalf, and also in the name of Thomas Vega and Rafael Aguerre;”
That when, in conformity to this petition, Lesassier made' his decree, he described it as npide in favor of “José Maria Aguerre, Rafael Aguerre, and' Thomas de Ig Vega.”'
The,court charged that the title set up by the defendant in Fleming could -not defeat 'the' plaintiffs, because it was junior in date to it, and that they'would fijid for the plaintiff' .unless, they believed from the evidence that the testimonio was a forgery; that the registration, was. only primd facie evidence of its genuineness, and that the fact that the court-had admitted the testimonio in evidence did not pre-. elude the defendant from showing that it was forged, and that if.'the jury believed that'Thomas de lá Vega never did sign it.they would reject it; that there' was no-evidence of forgery -except the difference in the name Thomas Vega and Thomas jde 'laVega; that the .testimonio^. “ the original and'.copyof which ” was before them-, was evidence for their consideration; that it was not necessary that the signature of Thomas 'de.la Vega'should be.in. his own proper handwriting on the testimonio before the jury) and that if Thomas' de la Vega' did sign the original of it in the office1 at Saltillo then the testimoPio given in evidence, with a proof of a conveyance by Williams, under it,-would divest Vega of his lands.
p. 273
The defendant asked the court to charge — '
1.. That the jury must" disregard the papér purporting to' be a testimonio•
2. That unless they, believed that the original grantqe of the. land and the person making the instrument (if it ever was made] purporting to be a power, of attorney, were 6ne and the same person-, they must disregard it;
3. That unless they believed as last abovementionedfhey must find for the defendant;. ,
' The court, refused the .charge first above requested, and gave the other two, with the qualification that if the-jury,believed, from either the documentary or orál testimony, thaCf the original-grantee was known-indi'fferently by the,name of Thomas Vega and Thomas de laYeg&, the presumption was that he was the person who signed the power; and'that the j.ufy would-so consider, unless satisfied otherwise from other evidence.
Verdict and judgment having gpne for the plaintiff, the, defendant brought thé.case here; the writ of error-being in; the name of the whole hinebriginabdefendants; all of whom,, as already said, except McPhaul, had been with -the plaintiff’# assent dismissed from the case before trial.
•“ An act to further the administration of justice,” passed,' Junel, 1872,[16] enacts,
• “ That the. Supreme Court may, at -any time, in its discretion and upon such terms as it may d^em just, and wber.e the defect has not injured and the amendment will not prejudice -the defendant in error, allow an amendment, of. a writ of error when there is a mistake in the teste . . . and in all.other particulars of form.”
■ In the assignments of error, it was alleged for error that the court erred, among other ways—
;1. In admitting.the testimonio in evidence.
2. In excluding the testimony of Walker:
3. In charging that tbe admission in evidence of tbe testimonio wasprimd facie evidence of its genuineness;
p. 274
And further, that there was before them no evidence that the testimonio was not genuine, except the evidence of difference óf name;
And in improperly withdrawing the mind of the'jury from considering the want of genuineness of the testimonio from a failure of the plaintiff to show the existence of or the genuineness of any protocol at Saltillo.
Mr. T. G. Durant, for the plaintiff in error:
. 1. The court erred in receiving the testtfnonio in evidence, under the act of May ISth, 1846. That act, by which written instruments on bejng filed* in a cause prove themselves, applies only to those instruments which are “ properly recorded.” Now, a téstimonio is but. a copy; an ex parte copy, made without any opportunity to cross-examine the witnesses as to its authenticity. In the present case the copy purports to be taken from the original on the day of its date (5th May, ,1832). It was -afterwards recorded in different counties; but recorded ' when afterwards ? Not until twentyffour, twenty-six, and twenty-seven years afterwards.
■ If a registration of a document were provided for by previous laws (and unless it was so plainly the téstimonio did not by filing prove itself), no document recorded until so very far from the proper time was “properly recorded.”
Further: the law of Texas providing for the registration of powers of'attorney[16] says they “ shall be proved or acknowledged according to law.” No such proof or acknowledgment could be made as to the testimonio, for it was without any actual signature of De la Yega to it. If-Thomas Yega was the name, iki name was on the'copybut the whole’ paper, name- and all, purports to be a copy,written wholly by Juan Gonzales himself, as regidor, second alcalde, and acting in the absence of the notary public, and does not purport to, have-been written or signed by De la Yega.
But. even if .the' document were one the registration of which was contemplatdd by the statute, the affidavits are
p. 275
short of the requisitions, and the- document is left as an office-copy of a power of attorney without the slightest effect as proof, farther-than that- there was, inform, such a power. Indeed, Gonzales says (more than twentj^-five-years after the alleged power of attorney was-given) that he executed the- copy at the personal request of, &c., &c., and “ that'the signatures'of . '. . and . . . were signed as assisting witlies.ses in his presence, and are their true and genuine signatures,” meaning and certifying that the witnesses are to the fidelity of the copy, and not to the correctness or genuineness of the original.
Neither of.these assisting witnesses is produced; The case is equivalent to that of an office clerk in a common-law^'Státe copying a power of attorney, swearing to the execution ;'of the original, having the copy recorded, and hoping by this means to make the copy supply the place of-the original, under the special legislation of the several'states.
But these assisting witnesses were not the witnesses, to -the signature of Vega or Déla Yéga-to the original power of... attorney. ' Three citizens aud neighbors, áre d'éclared present at the execution and delivering. - Their names are given in full: Antonio Espinoza, Rafael de León, and Fran-, cisco de la Fuente. ' Neither is produced, nor is his -absence-' accounted for.
Were these witnesses bound under Spanish law to sign with the principals and notary? Doubtless. But they do not sign.- And no one of them was produced to prove .the execution and acknowledgment.
But if the testimonio, in virtue of being filed, proved itself, what was it? Nothing, even as pretended, but a copy of an original confessedly existing and capable of being"produced.
The testimonio did not profess to be an original.. The filing may have dispensed with proof of its being a copy. But.if it had not been filed, and had been offered in evidence as a copy, and been conceded by us to be a true copy, how did that help the plaintiff? In Spain and.her colonies indeed, these testimonios or copies, make primot facie full .proof of all they contain, w-hfen offered in evidence on a judicial
p. 276
contestation. But this institution of the notariat forms no part of. the laws of 'Texas, where the common-law rules of evidence prevail,--except so far as statutes may alter them.
■ The filing,'in short, may have dispensed with certain formal proof, but it does notallow you to prove by a secondary sort of evidence that which you can prove by an original in youi control;
2. The court erred in rejecting the testimony of Walker.
If a copy became, by filing, under the act of May 12th, 1846, the equivalent of an original of which it purported to be a copy, or even if the rule of the Spanish law prevailed, and this testimonio became as a meré copy evideuce, it would not even under that law become more thau prima facie evidence; and the court erred in rejecting the evidence of Walker to prove that there was no such original as that of which th.e testimonio purported to be a copy; in other words, that the testimonio was fraudulently made. Even under Spanish law that could be proved. Now, certainly the testimony of Walker, with' his photograph fac similes in his hand, did tend to prove this. In our opinion suph testimony tended strongly to prove it. But certainly the testimony teuded somewhat to do so, and if it tended at all— tended in the least — it ought to have been received. It will be said that the originals could have been produced, and that such original was better than the photograph. The argument is double-edged. It cuts two ways; and more sharply backwards than forwards. If the argument has any force', why was not the original produced to support the plaintiff’s claim ? To prove what was in the protocol the photographs were infinitely better than the testimouio.
3. The court erred in charging. It charged that there was no evidence that the testimonio was not genuine except the evidence of diffei'ence of name. If there was any law authorizing the record (and, as we have already said, unless there was, the testimonio was wrongly admitted without being proved), some presumption of fraud (in our view a considerable one) arose, from the non-recording of the paper for nearly thirty years after its date.
p. 277
. The principles of law, as to the testimonio, were entirely, disregarded in the instructions. , Tlie court says :
“The testimonio, the original and copy of which is before you, of iilay 5th, 1832, is evidence for your consideration.”,
"Whilst the record shows that only the testimonio or office-copy of the power of attorney was before the jqry/ It further 'said that “it was not necessary that the .signature of the grantee, Thomas de la Vega, in his own. proper handwriting, should be on the testimonio before the jury, and also that if,Thomas,da la Vega did sign the original of, t[ie testimonio and the testimonio before the jury in the office at' Saltillo, then thé testimonio .given^ in -evidence, with proof of a conveyance made by Williams,, the attorney, by virtue' of it,.would divest La Vega.of his lands claimed.”
This withdrew the minds of the jurors from the consideration of the want of genuin.enes.s of the testimonio, arising from a failure of plaintiffs to show the existence of or the genuineness .of any protocol in Saltillo.[16]
In Spencer v.. Lapsley,[17] this same testimonio was, indeed, received by this eoui’t; but then the court relied for its judgment upon the fact that “its authenticity had'never been questioned by La Vega, so far as is shown in the record.”.
Mr. P. Phillips, contra:
I. The testimonio toas “ properly recorded,” and, therefore, having been filed, with notice of the', filing, was made evidence by the- ' act of May 13¿/¡, 1846.
l! A testimonio is what is known in Texas, deriving its terms from■ the Spanish law, as a “second original;” and not, as is assumed by the opposing coqnsel, a copy- simply. This was settled by this court in Mitchel v. The■ United States so far back as 9th,Peters.[14] It is there said:
“ The original’ is a record, and preserved in the office, and cannot be taken out; a testimonio or copy is delivered to the party, which is deemed tó be and is certified as an original
p. 278
paper, having all the effect of one in all countries governed by the civil law.”
And in Herndon v. Casiano,[16] the Supreme Court of Texas said the same thing-:
“ The testimonio, though denominated a second original, is still an original.”
As an original it was rightly recorded under the recording acts of Texas.
-That the testimonio is an “instrument in writing concerning land,” as described in the fourth section of the act of May 12th, 1846, is plain.
And that the’acknowledgment by Gonzales was máde by “ the person who executed the instrument.”
And that his deposition, together with that of Seguin, as to the genuineness of the handwriting of the assisting witr nesses (who are residents of a foreign country), bring the case fully within the provisions of the seventh and ninth sections.
In Edwards v. James,[17] the officer who executed the testimonio acknowledged the same, and-on this it was recorded. The Supreme Court of Texas held this sufficient under the thirty-fifth sectiou of the act of 1836. It said:
“ The'officer who executed the protocol, and issued the copy or second original, appeared before the county register and acknowledged his signature to the certificate authenticating the testimonio, and this was sufficient, under the thirty-fifth section of the act of 1836, to have authorized its record.”
If we compare these words of the act of 1836 with those of 1846, we find them to be substantially the same.
In the first, evidence is-to be produced as to the “ signature of the. signer,..unless he, himself, shall'acknowledge the same.”
By the second, the acknowledgment is to b.e rnáde by the <£ grantor, or person who executed the instrument.”
The signer of the instrument, and the person who exe
p. 279
cutes it, are the same. So that the decision made*;under.the act of 1836 applies in full force to a like acknowledgment made under that of 18.46.
In Paschal v. Perez[16] the.court say:'
“ If the instrument be legal and authentic, without subscribing witnesses,- it would require language too plain to be mistaken,to exclude it from record for the want of proof by such witnesses-, the signature of the signer being substantiated.by satisfactory proof.”
In this case we not only have this acknowledgment of the signer, but the evidence of two witnesses to his signature, and the genuineness of the signature of the-assisting witnesses, non-residents.
2.1 The paper as a “ copy ” of an “ original remaining in the public archives, executed in conformity to the laws existing when it was made, duly certified by the proper officer,” was properly recorded under the second section of the act of 19th' January, 1839.
In Guilbeau v. May,[17] decided in the Supreme Court of, Texas A.D. 1855, the court says:
“It is believed this act has a direct reference to this■ descrip-. tion of titles. It is well known that in the titles to land executed-prior to our separation from Mexico, the original remained as an archive, and a testimonio was given to the interested party as an evidence of title. . . . The act leaves no doubt that\his-. kind of evidence ought to be recorded.”
The recording acts, tnerefore, applied tó the paper whether it was' an original or a copy; and as either it was “properly recorded. What if it was not recorded for many^yeará after its execution?., Papers do not lose their right to be recorded by delay; If proper papers for record at.one time,, they are of right recorded at any time; and when recorded of right are properly recorded.”[14]
Having been properly recorded the document was made evidence by the act of May 3d, 1846.'
p. 280
II. The testimony of Walker'• was' rightly excluded. Its pur* pose was to discredit a testimonio making a title to land, by showing, forty years after the execution of the document, a discrepancy between the testimonio and the matrix or protocol.
If evidence to do' this is admissible at all, it ought to come from the best source. The officer in charge- of the archives-' should have been examined, and the documents themselves, or authentic copies, should have been pi'qduced in court.fqr inspection.
In this case what purported to be a photographic copy of the protocol was no proof at all, because not established by the testimony of any person who made it.
' It is by no means admitted that if proper-evidence of discrepancy had been produced, this would have invalidated the testimonio.
-,It'is stated by Sala,[16] tbat the paper which is always signed by the parties aiid witnesses is the firét draft orí common paper.
That it ought afterwards to be extended in the book of' protocols, and should be again signed by them.
That the first paper, when free from blots, &c., is better evidence, than the protocol, because, it is always signed by the parties, whereas the protocol is not always signed by them, and because the former contains the rubric or seal of the officer, while the latter does not.
• That'the protocol has full faith for which it is intended ; but in'court so muchfaith is hot awarded to it as to the testimonio, because it was not established for the purpose, and because it wants the rubric or seal which .authenticates -it, and which every public instrument Ought to have.
. That'the testimonio makes full proof exceptm cases where the .instrumental .witnesses dispute it.
By a.law of Texas all. the archives were required to be deposited irf the G-eneral' Land Office, whether in, possession-' qf-an empressario, political chief; alcalde,.commissary, or commissioner. The failure-- to do this was visited with a heavy
p. 281
penalty. Documents so deposited were to remain there, and certified copies were made evidence.
In Titus v. Mimbro,[16] a testimonio was offered in evidence an'd held to Be conclusive, and to "be better .evidenceMlian a certified copy of an original tille from the General Land Office.
III. The charge was right.
The judge was requested to charge, that unless the jury believed that the'grantee and Thomas Vega were one and the same person, the instrument must be disregarded. The instruction was given, with the qualification, that if the jury believed that the grantee was known indifferently as Thomas Vega and Thomas de la Vega, then the presumption is that he was the'same person, .and they would so consider, unless ■satisfied that, such was. not the fact.
In view of thd documentary evidence on which the. two names were used indifferently, there can be no valid objection to this charge.
No instruction was asked for as to. the effect of the lapse of time before the instrument was recorded. If such instruction had been asked, it would h,ave'been properly refused, as the registration, whenever made,'is effective from • its date.
• We need not assert that the testimonio coming from our possession would have ptoved itself. We rest its admission, in evidence without proof of execution, on the ground that the statute of the State made it evidence after it had been recorded, and when notice had been given that' it was to be used in evidence on the trial.[17]
IV. The writ of error is sued out by McPhaul and all the other eight original defendants to correct a judgment rendered against them. ■
There is:no judgment such as is-described in the writ. The only judgment is against McPhaul alone.' He alone petitioned for the w.rit. The writ must, therefor^, be di's
p. 282
missed (if amendable in this particular) as to all others than McPhaul.
delivered the opinion of the court.
The aetion-'was ejectment. Lapsley was the plaintiff. The plaintiffs in error were the original defendants. In the progress of the cause the plaintiff' dismissed the action as to all of them except N. A. McPhaul, and judgment was rendered against him for their costs. He- recovered against McPhaul, and this writ of error is prosecuted to reverse the judgment.
The writ should have been in the name of McPhaul alone as the plaintiff in error. But as the defect is clearly amendable under the third section of the act of June 1st, 1872, it is unimportant.
There are numerous assignments of error. Except those involving points 'which we deem material to be considered, we shall pass them by without remark.
The affidavit of Mussina was properly stricken from the files.
The law of Texas provides as follows: “ Every instrument in writing (properly recorded) shall be admitted as 'evidence without the necessity of proving its execution,.provided that the party who wishes to give it in evidence shall file, the same among the papers of the suit three days before the trial and give notice to the opposite party of such filing, and unless such opposite party, or some other person for him, shall within one day after such notice file an affidavit stating that he believes such instrument to be forged.”[9]
The affidavit was filed by Mussina as the attorney of Be la Vega. It set forth that the instrument of writing purporting to be a testimonio or second original of a power of attorney from Thomas de la Vega, by the name of Thomas Vega, to Samuel M. Williams, dated May 5th, 1882, was, as affiant verily believed,.a forgery. The testimonio was one of the' plaintiff’s files in the. ease for the purposes of evi
p. 283
deuce upon the trial. The object of the affidávit was to throw the burden of proof upon the plaintiff^
He had given ffye proper notice to the defendants on the 16th of January, 1872. The affidavit was filed, not within one day thereafter, as the statute required, but on the 5th of February following, while the trial was in progress. De la Vega, in whose behalf it was' filed, was not a party to the record.
It is insisted that the testimqnio was improperly admitted to record, and tbatit was not properly admitted in evidence. These objections present questions of local law.
The instrument is as follows:
It bears date on the 5th day of May, 1832, and sets forth that Thomas Vega, Bafael Aguerre, and José Ma. Aguerre, of the city of Leona Vicaria, appeared before Juan Gonzales, regidor of that city,- and declared that they conceded to Samuel May Williams, a resident of the city of Austin, full power, “ in order that in the names of the appearers ” he might proceed to sell .the lands therein described. , “And to confirm all that may be granted and executed, the appearers bind themselves, their persons, and their property present and to come.” It concludes, “ Thiis have they granted and signed it in presence of these witnesses, Antonio Espinosa, Bafael de Leon, and Francisco de la Fuentes, Gonzales, residents of this city.
“I attest: Juan Gonzales. Thomas Vega, José Ma. Aguerre, Bafael Aguerre.”
. The following memorandum was affixed:
“ Copy from the original, with which it agreesj the day of its execution; given on two 1 useful ’ pages of paper, of the second stamp, conformable to law. All of which I, the undersigned judge, officiating with those assisting me according to law, hereby attest;
“Juan Gonzales.
“ Witness:
Jose Nazo Ortiz,
J. M. Moral.”
p. 284
Affidavits are annexed upon which it was recorded, in McClennau County, September' 7th, 1856, and again, September 22d, 1858; in Falls County, October 6th, 1859, and in Williamson County, October 15th, 18597 The affidavits were all sworn to in Texas. Among them are, one proving the handwriting of Gonzales and the attesting witnesses— Moral and Ortiz — and that, if living, they are residents of Saltillo, in the State of Coahuila; one-by Gonzales, made July 13th, 1857, proving that the testimonio was executed by him at the persqual request of the grantors named therein and in their presence, and that his signature thereto,' and those of Moral and Ortiz; are all genuine; that Thomas de la Vega executed a certain other power of attorney before him to S.' M. Williarhs on the 28th of April, 1832, and that “ the said Thomas de la Vega, who ¡executed this testimonio, is one and the .same person;”
The testimonio here in question being a copy from the protocol, or original instrument, made .by the officer' by whom the protocol'was executed, was', in the eye of the' Spanish law and of the law of Texas, “a second original,” and of equal validity and effect with the prior one.[9]
That-Gonzales had authority adequate to the function he performed, and that the testimonio was valid, was held by this court in Spencer v. Lapsley.[8]
In relation to the recording of. the- instrument, our attention has been called to the following statutes of Texas: the act of the 20th of December, 1836, sections thirty-five and forty; the act of May 10th, 1838; the act of January 19th, 1839; and the act of May 12th, 1846, sections four, five, seven, eight, and nine. A careful examination of these statutes has satisfied us that the registration was authorized „by law. If there could be any doubt upon the subject it is
p. 285
removed by the Texas adjudications[9] upon the subject, referred to in the argument of the learned counsel for the defendant in error. A certified copy from the office, where the testimonio was recorded would, therefore, have been competent evidence. The original, with the-recorder’s indorsement, would, as. a consequence,.also have been admissible. In such cases, it would be a solecism to receive the copy and reject the original.
In this ease the plaintiff offered the testimonio in evidence, and it was properly received. It would have been admissible without recording. In Martin v. Parker,[8] it was objected that an act of sale of real estate, not having been signed by the instrumental witnesses, was inadmissible without proof of its execution. The court replied: “We do not think the objection well taken. In McKissik v. Colquhoun,[6] Chief Justice Hemphill said: ‘The signature of a judge or alcalde 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.’ ”
The defendant offered to prove by T. I. Walker, a witness present, that in the year 1868 he went from Austin, Texas, to Saltillo, formerly Leoua Vicaria, in Couhuila, Mexico, aud there examined the books of protocols in the office of the secretary of the ayuntamiento; that he found in the book of protocols for the years. 183,2 and 1833, among others a protocol of a power of attorney,.in the Spanish language, of the date of May 5th, 1832, from José Maria Aguerre to Samuel M. Williams, giving Williams the power to sell the. land granted by the government to Thomas la Vega and Uafael and José Maria Aguerre, to wit, eleven lea'gues each; that said protocol had to it no signatures but those of Gonzales and José Maria Aguerre, and that it had no signatures
‡ ‡ 18 Id. 151.
p. 286
of witnesses; that in said protocol-book, and of the date of April 28tb, 1832, he fouud an original protocol of a power of attorney, signed by José Maria de Aguirre,-or Aguerre, and Thomas de la Vega and J.uan Gonzales, with-attesting witnesses Ortiz and Moral; that this power was to Samuel M. Williams; and that in said book, from the power Of attorney of the 28th of April, 1832, to the power of the 5th of May, 1832, inclusive, there were seven leaves, and no visible evidence of any mutilation of the book; that there are no protocols of any power of attorney from either Maria de Aguirre, or Aguerre, or Thomas de la Vega, to any one, in said seven leaves, except the two named above; and that the witness had in his hands then in court photographic copies of said seven leaves, showing exactly the facts above-mentioned as to the protocol-book and the said two. powers of attorney as of record-therein.
The plaintiff, objected to the admission of the evidence. The court sustained the objection and the defendant excepted.
It has been shown that'the testimonio is “ a second original,” and of the same effect with the protocol.[9] According to an eminent Spanish authority it is full proof, unless the instrumental witnesses contradict it.[8] Here neither Vega, either of the Aguerres, Gonzales, Moral, nor Ortiz was produced ; nor was their absence accounted for. The bill Of exceptions states that the witness had the photographic copies in his hands in court — not that they were offered ip evidence. But perhaps it is ouly fair to construe-the bill of exceptions so as-to'give it that effect. Conceding this, the only testimony offered was that of Walker, and the two photographic copies.. It does not appear to have been suggested that this was to be followed' by any further testimony. The copies had been in the possession of Walker more than three years; yet it is not shown that the plaintiff had any notice
† † 4 Sala, 127, 130, 136.
p. 287
of them until they were suddenly produced by the witness in. the midst of the trial. It is also significant that the agent who went on the visit of exploration to Saltillo did not claim to have discovered anything whatever adverse to the testimonio, except the state, of the protocol as it appeared of record. Nor, did the defendant, enlightened as he must have been by Walker, invoke the testimony of the keeper of the archives, or of any other person residing in the locality where'they were kept. The .plaintiff’s petition was filed in 1863. Walker’s discovery was made in 1868. The trial was in 1872. There was time between the two periods last mentioned to procure ample testimony from Saltillo and elsewhere touching the fraud and forgery charged, if they were believed to exist. The defendant was silent. The record is a blank as to any such testimony given, offered, or sugT gested, except the isolated circumstances offered to be proved by Walker and' the two photographic copies. These' are pregnant facts. Copies of the photographs are not given in the bill of exceptions; nor.are the contents of.the power to Williams, of the 28th of April, given,in whole or part. That' is stated to have had upon it the names of José Maria Aguerre and Thomas de la Yega as grantors, and of Gonzales with those of Moral and Ortiz as assisting witnesses. It is possible that the testimonio may, by the mistake of the copyist, have the daté of the latter instead of t]ie earlier instrument, or that if the fuller and better evidence, which the defendant was bound to give, had been produced, the apparent discrepancies between the two documents in question might have been explained in a manner consistent with the integrity of all concerned and the validity of the testimonio. It should at least hav.e been shown .by some one officially connected with the office, that the book seen .by .the witness was the book, and the only book there wherein the instrument could have been properly recorded, find that<there was no such protocol anywhere in that book, dr elsewhere in the office. It is also possible it was known in the office that the missing signatures had been removed by some dishonest hand.
p. 288
The testimony proposed to be elicited from Walker fell far short of the requisite standard. • A..party is not permitted to give secondary evidence where it presupposes better' evidence within'his reach, which he fails to produce. In Ren ner v. Bank of Columbia,[9] this court, speaking of such evidence, said: “Every case must depend in a great measure upon its own circumstances. The rule of evidence must be so applied' as to promote the ends of justice, and guard against fraud and iniposition.”
It appears incidentally bj? the record that there has been - a great amount of litigation, extending through a long period of timé, touching the lands to which this testimonio relates. The protocol and testimonio bear date more than forty-years ago.
.The record.does not show that during this-long period either of the Aguerres ever questioned the validity of the latter, or that La Vega ever assailed it by liis own sword testimony..
Large and diversified interests must have grown up on the faith in its genuineness. In this case the attack upon the instrument is! not made' by either of the grantors, but vicariously by the defendant, who claimed under a distinct and hostile title which he wholly failed to establish.
Under all the circumstances, we think the testimony of Walker was properly excluded.
In our judgment the court was correct as to the instructions given and those refused, to which the exceptions touching that subject relate-
We direct, sua sponie, the writ of error to be amended by striking from it the names of all the plaintiffs except McPhaul; and the-judgment of the Circuit-Court is
Affirmed.
* 9 Wheaton, 581,
Footnotes
- * Section 90, act 13th May, 1846, p. 387, referred to in Hanrick v. Barton, 16 Wallace, 166.
- * 1 Partidas, 222; Owings v. Hull, 9 Peters, 625; Mitchel v. United States, Ib. 732; Smith v. Townsend, Dallam’s Digest, 570; Herndon v. Casiano, 7 Texas, 332.
- † † 20 Howard, 274 .
- * Guilbeau v. Mays, 15 Texas, 414; Henderson v. Pilgrim, 22 Id. 476; Secrest v. Jones, 21 Id. 183; Paschal v. Perez, 7 Id. 348; Edwards v. James, Ib. 377.
- † † 26 Texas, 260.
- * Mitchel v. United States, 9 Peters, 732; Herndon v. Casiano, 7 Texas. 332.