Holliday v. Cromwell
Thomas Holliday v. A. H Cromwell and others
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Summary
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Opinion of the Court
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Wheeler, C. J.
It was proposed to make proof of the deed of the 25th of October, 1834, by the production of a certified-copy from the records of deeds, under article 745 of Hartley’s Digest. (O. & W. Dig., art. 467.)
It was objected to the introduction of the copy that the deed had not been duly recorded.
The certificate of registration bears date on the 2d day of June, 1841, and is as follows: “ The foregoing deed was this day presented for record and thereupon admitted.”
The laws in force at that time concerning the registration of deeds, required the acknowledgment, or some proof of their execution; or, where the original remained in the public archives, a certificate of the keeper thereof, to authorize admitting them to record. (Hart. Dig., arts. 2,752, 2,755, 2,760, 2,761, 2,768.) And the act of the 19th of January, 1839, required that a certificate of the acknowledgment, or pooof, be made upon the instrument, “ and become a part of the record.” (Id., art. 2,760.)
There not only was no such certificate, but the certificate made by the clerk would seem to imply that the instrument was recorded upon its simple presentation, without more.
The case of Paschal v. Perez, (7 Tex. R., 357,) is relied on as sustaining the ruling of the court admitting the copy in evidence. *194 But that case does not go the extent of holding that a deed recorded as this was in 1841, can he proved by the production of a copy from the records, without some evidence that it was acknowledged or proved for registration. That was not the question the court was there considering.
The statute under which it was proposed to prove the instrument by the production of the copy in question, authorizes that mode of proof only in cases- where the instrument proposed to be thus proved “ is permitted or required by law to be recorded,” and has been recorded “ after being proven or acknowledged in the manner provided for by the laws in force at the time of its-registration..” (O. & W. Dig, art. 469.) There was no evidence before the court that the instrument in question had- been thus proved or acknowledged, and we are of opinion that the court erred in admitting the copy in evidence.
In the very unsatisfactory state of the record,- we decline to express any opinion upon other questions in the case. It is proper, however, to remark that the rulings of the court and the facts of the case ought to appear by the record, and not be left to rest upon the agreement of counsel outside of the record. And that the court below could not be required to give to the jury an instruction which assumed that the plaintiff was a purchaser “for a valuable consideration,” when there was no evidence that he paid value; nor could this court revise the judgment upon the assumption that instructions were given by the court, which the judge certifies in the record that he declined to give.
We are of opinion that the judgment be reversed, and the cause remanded for further proceedings.
Reversed and remanded.
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