Russell v. Oliver

COLLARD, Judge.

The first assignment of error is, “ The court erred in admitting in evidence the certified copy of the will of John B. Tong for the reasons urged against it as shown in bill of exceptions.”

The objections were, “ Because the proof taken of the witnesses T. W. Hoy and Harvey K. Spillers, purporting to be subscribing witnesses, was not shown to be taken before any person authorized to take the oath of said parties as witnesses, the same appearing to have been sworn to before W. H. Fowler, who styled himself £ Oik. P. C. M. C.,’ without attesting his act by any seal; and for the further reason that the county clerk of Montgomery County, Texas, was the only person under the law then in force who could take the proof of the subscribing witnesses, which was not shown to have been done.”

*14 The affidavit began as follows:

“Republic of Texas, County of Montgomery—Probate Court, March Term, 18J/4.—Came personally into open court Thomas W. Hoy and Harvey H. Spillers, who are well known to the court, who being duly sworn under oath depose,” etc. The jurat is as follows:

Sworn to and subscribed before me, March 25, 1844.

“ W. H. Fowler,

“Clk. P. 0. M. C.,

“ Thomas W. Hot, •

“Harvey H. Spillers.”

At the time the will was probated the chief justice of the County Court was made and styled the judge of probate (Hart. Dig., art. 252), and the clerk of the County Court was made and styled clerk of the Probate Court. Hart. Dig., art. 257.

The official capacity of the officer who swore the witnesses to the proof •of the will is sufficiently designated by the abbreviation and the letters following his signature. The affidavit was taken in open Probate Court, and it will be inferred that the jurat was made by the clerk of the Probate Court of Montgomery County as indicated by the letters.

Discussing this subject, Justice Moore, in the case of McDonald v. Morgan, 27 Texas, 506 , says: “From the foundation of our government it has and continues to be the general habit and custom with such officers, as well as those of almost every grade, to use parts of words or letters to indicate the official capacity in which they are acting.”

We find no authority, and none has been cited by the learned .counsel •for appellants, that the act of the clerk swearing witnesses or taking affidavits in open court in a judicial proceeding must be authenticated by the .seal of the court. The law now requires, as it did in 1848, that where the proof of the execution of a will is made by affidavit in open court it should •be subscribed by the witnesses, filed and recorded by the clerk. Rev. Stats., arts. 1847, 1853; Pasch. Dig., art. 1262.

All the testimony taken in the proof of a will in open court must be subscribed by the witnesses in open court, filed and recorded by the clerk; but there is and has never been, that we are able to find, a requirement that such testimony taken by affidavit or otherwise must be attested by the seal of the court.

Defendants filed a supplemental motion for a new trial based upon newly discovered evidence, which was overruled by the court Error is assigned upon the ruling.

The newly discovered evidence is: 1. A transfer of the certificate Ho. 539 (by virtue of which the land in controversy was located) by John B. Tong, the original grantee, to Elias Moss-for a consideration of $100, dated January 6,1844, duly acknowledged by Tong on the same date. In support of the motion defendants produced in court a certified copy of the *15 transfer from the Commissioner of the General Land Office, the original of which was on file in the office.

2. A certified copy of the original certificate with the endorsements thereon by the Commissioner of the General Land Office. The endorsements are a transfer of the certificate for a valuable consideration to Martin D. Taylor, signed by Rody X Yarbery, witnessed by William Prewett, dated February 15,1847, not proved or acknowledged; and another transfer of the certificate by Martin D. Taylor to William Prewett for a valuable consideration, of date 15th of February, 1847, not proved or acknowledged.

The certificate is a donation warrant for 640 acres of land to John B. Tong for services at the battle of San Jacinto. There is a stipulation in the warrant that it can not be sold, alienated, or mortgaged during the lifetime of the grantee. The will of Tong bequeathed the certificate to Rhoda, his surviving wife. It was proved that Tong died without issue; that his wife married Mathew Yarbery and died without issue in 1853, leaving her husband surviving her, who, after conveying the land in controversy to plaintiff Oliver, died on the 23d of March, 1885. The certified copies of the transfers of the certificate were produced as exhibits A and B in support of the motion for a new trial, to show that there was an outstanding title which would preclude a recovery by plaintiff.

Defendants as a part of said motion for new trial appended affidavit of John L. Dyer, counsel for defendants, showing that the foregoing facts were newly discovered, and discovered after the trial of said case and could not have been known or discovered by the exercise of any reasonable diligence prior to. the trial of this cause; that he had the chief management of this suit; that on the trial of this cause certain proof was developed concerning the said certificate—its former location; that on the day of the trial of said cause counsel for defendants wrote to the Commissioner of the General Land Office of Texas for a certified copy of said land certificate and all endorsements thereon and transfers, if any, connected therewith, and was on the day before said motion for new trial was filed furnished with said exhibits A and B, filed with said motion for new trial, which was the first time counsel for defendants was made aware of the transfers of said land certificate; that plaintiff’s action did not necessarily put defendants on notice of transfers behind the patent of said land certificate, and that they, counsel for defendants, in the exercise of ordinary and reasonable diligence could not well have learned or anticipated said facts, which counsel for defendants believe presents a valid legal defense of outstanding legal title in third parties and other than plaintiff.

We do not think it was error to overrule the motion for a new trial. It is nowhere stated in the motion that plaintiff had notice of the transfers • in the Land Office at the time he purchased from Mrs. Yarbery or Yarbro, nor is it alleged that he had not paid a valuable consideration for the land. The motion does not state facts showing he was not an innocent *16 purchaser and as such might recover, notwithstanding the outstanding title. He was not bound to take notice of the existence of the transfers. One would be bound to know of the existence of such original titles as are in the General Land Office, but not of private transfers deposited or on file there.

In addition to this, the application does not show that defendants had no knowledge of these transfers before the trial. Because Swenson resides in New York is no reason why he should not know of the transfers. The affidavit of the attorney is sufficient in respect to his own want of information of their existence, but insufficient in respect to that of defendants. Hill, on New Trials, 499.

Appellants contend that plaintiff does not show himself entitled to the land because his deed is signed by one “M. Yarbro ” and not “Yarbery,” who is shown to have been the surviving husband of Mrs. Tong. It was in proof by witness Spillers that Mrs. Tong was married to Mathew Yarbery; that she died without issue in 1853, leaving her husband surviving her, who also died in 1885. The deed to plaintiff is signed “Mathew Yarbro,” and it recites that he was the husband and sole heir of Rhoda Yarbro, formerly Rhoda Tong, deceased. This recital identifies Yarbro as the same person called Yarbery by the witness Spillers. The names if not idem sonans at least sound very much alike. The recital in the deed explains the apparent discrepancy.

Plaintiff in his petition claims to be the owner of one undivided half of the land, describing the whole tract; he prays “for judgment for the recovery of said land, and (that) the title to the same” as against defendants, for costs, and for general relief. The judgment is that the plaintiff do have and recover of defendants the tract of land, describing it, and that writ of possession issue, et cet.

Defendants complain that plaintiff suing for only one-half could only recover title to one-half. It is not clear from the language of the petition that the suit was for the recovery of one-half, simply an undivided half. It is alleged that he is owner of such interest. At Mrs. Yarbro’s death without issue one undivided half of the land descended to her husband Mathew, and if he was, as stated in his deed to plaintiff, her sole heir—that is, if she left surviving her no issue, no father, mother, or sister or brother or their descendants—he would have inherited the whole estate. In either event he would have sufficient title to recover of defendants, who have no title, the whole of the land. Sowers v. Peterson, 59 Texas, 220, 221 ; Ney v. Mumme, 66 Texas, 269 .

We conclude that the judgment ought to be affirmed.

Affirmed.

Adopted June 17, 1890.