James M. Baker, Adm'r, v. Elizabeth Coe and Others, 20 Tex. 429

Wheeler, J. The question upon this appeal is, whether the curator’s sale and deed, of the 15th of November, 1834, was rightly held by the Court valid and effectual to pass and vest title in the purchaser. And we are of opinion that it was. It was executed before the Judge, and it therefore evidences his authorization and approval of the sale. It is to be deemed in the nature, in so far, of a judicial act, and affords grima facie evidence, at least, of the truth of the facts it recites. It affords all the proof that ought, at this day, to be required of the legality of the sale.

Upon a similar question, the Supreme Court of Louisiana say, the ground taken, in opposition to the validity of a Probate sale, by the parties seeking to impeach it, “ goes to charge the curator and the Court with a culpable neglect of duty, and it must be proved by them, though it involves a negative.” (2 Ann. 508.) The objection the Court were considering was, that no attorney was appointed to represent absent heirs, as required by the Act of 1817, and no citation was issued before the judgment ordering the sale.

The evidence was that of a subsequent Judge of the same Court, that he had searched the records, (in 1845,) and found no appointment of any attorney to represent the absent heirs, and no citation issued before the judgment ordering the sale of the property, (in 1825,) to any one purporting to be attorney of absent heirs. The Court held the evidence insufficient to invalidate the sale, observing that, “ considering the time and the locality when and where these proceedings took place, the evidence alleged is not satisfactory, and probably would not be so in any case.

It is well known that in the remote parishes of the State, for the want of suitable buildings and responsible keepers, proper care has not been taken of judicial records, that many are entirely lost, and that those which remain are often in an incomplete and dilapidated state.

Much the greater part of the real property of the State is held under Probate or Sheriffs’ sales; and if the validity of the titles thus acquired during the last forty years was to be tested by the judicial records as they may exist at any subsequent epoch, time, instead of healing, as it should, the defects of those titles, would gradually weaken, and eventually destroy them.” (Ib.) These observations apply with peculiar force to the condition of the early records and titles of this country, and especially in the locality of the proceedings in question in this case.

It is not surprising that portions of the records of the proceedings of the judicial tribunals of that time and locality, especially, have been lost.

The matter of surprise is, that any part of them should have been preserved from the devastation and ruin that overspread that particular locality after the fall of the Alamo; when it was overrun by the semi-barbarous hordes of an enemy that discarded all the laws of civilized warfare, held nothing sacred which their Vandal hands could destroy or desecrate, and literally carried fire and the sword, an indiscriminate destruction and slaughter, in their march, as they swept over that part of the State, before any effective force could be concentrated to check their ravages.

In respect to the acts and judicial proceedings of the authorities anterior to that time, under which rights have grown up and titles have been held and transmitted, we may well apply the rule adopted by the Supreme Court of Louisiana, and hold those who would invalidate them, on the ground that the records do not show a compliance by the officers with the requirements of the law in every particular, bound to prove that there was not, in fact, a compliance with the law, “ though it involved a negative.” (Ib.) The presumption in the present case is, that there was such compliance.

The opposite supposition would impute to the curator and the Judge a culpable violation of duty. And the presumption of omnia rite aeta, which attaches to judicial proceedings, is not to be rebutted by the remote presumption arising from the absence of record evidence of the order of sale and the necessity of such order, after so great a lapse of time.

As was said in the case cited, “ The defendant was not the keeper of the records, and is not bound to account for their loss. * * * We are bound to believe, against mere probabilities, that the Judge did his duty, and to presume, at this late period of time, that” all the prerequisites of the law were complied with when the Judge gave his sanction and authorization to the deed of conveyance.

The absence of the order of sale in this case, as was said by the same Court in a later case, “ when applied to these ancient proceedings, raises but a remote presumption, which we hold to be subordinate to the violent legal presumption that the Judge before whom the proceedings were had did his duty.” (3 Ann. 147.) We have heretofore had occasion to notice with what indulgence the Courts of other States have regarded the proceedings of their Courts of Probate, when it was proposed to annul titles fairly acquired under them, because their records did not show a compliance with all the requirements of the law in respect to the disposition of the estates of deceased persons. (Burdett v.

Silsbee, and Dancy v. Stricklinge, 15 Tex. R.; Soye’s Heirs v. Maverick, 18 Id.) Presumptions must be indulged in favor of those proceedings, especially when they are ancient, and titles have been acquired and transmitted under them, or it would indeed be true that time, instead of healing, as it should, the defects of these titles, would gradually undermine, and eventually destroy them. The judgment is affirmed. Judgment affirmed.