H. B. Andrews and others v. John Marshall and others, 26 Tex. 212

Wheeler, 0. J. The appeal of the plaintiffs, Andrews and Sayre, brings in question the rulings of the court and the finding of the jury on the defence of the statute of limitations. To make out this defence, it devolved on the defendant to show an adverse possession of the league of land in controversy, after his return to the neighborhood and settlement upon his labor in 1845. His settlement upon the league in 1835, which was relinquished in less than a year thereafter, could not avail him anything in any view of the law, unless he afterwards resumed the possession of the league.

On his return to the country he did not settle upon the league; his settlement and improvements were wholly upon his labor, and the acts relied on as constituting possession of the league were cutting and carrying away timber for his improvements upon his labor, building pens for penning his stock, hogs, &c., and pasturing them upon the league, to which, however, they were not confined by any enclosure, but ranged at large.

These acts considered severally, the court instructed the jury, at the instance of the plaintiff, did not constitute an adverse possession; but by the 8.th instruction, given at the instance of the defendant, they are collectively made, in effect, to constitute such possession.

The charge, moreover, assumes that there was evidence from which the jury might find not only the acts of possession enumerated, but that possession was held by the defendant by “otherwise using said land openly and notoriously as his own.” At least the jury might very naturally infer from the language of the charge that such was the opinion of the court. The charge, as a whole, puts the case, we think, too strongly for the defendant, and considered in reference to the evidence was calculated to mislead. What will constitute a possession sufficient to bear a recovery under the 15th

section of the statute has been heretofore considered by this court, and need not be here discussed. (Wheeler v. Moody, 9 Texas R., 372.) As applied to the evidence, we think the charge of the court was erroneous, and the judgment as to these plaintiffs must be reversed. The defendant’s appeal brings in question several rulings of the court, but one of which it becomes necessary to revise. That is the admission in evidence of the act of sale by Harrell to Williamson for the use of Smith, of the 7th of January, 1834, without proof of its execution.

If the instrument was properly executed with all the requisite formalities to constitute it a public or authentic act, the copy was rightly admitted upon the certificate of the clerk who was the lawful custodian of the original, because the original would have been admissible without proof of its execution. (O. & W. Dig., art. 470; York v. Gregg, 9 Tex., 85.) It was wanting the signature of the officer before whom it was executed. This, according to the case of Titus v. Kimbro, (8 Tex.

R., 210,) did not affect the validity of the instrument; but it does seem to have been essential to constitute it an authentic act, capable of making proof of itself. The signature of the notary, it is said, is that which gives an instrument executed before him its character as a public instrument, and it cannot be considered authentic without it.

If it were shown that the notary kept the originals in a volume for the year, and signed at the end of the volume, this it seems would be sufficient. (Escriche, verbo Instrumento Publico; also, verbo Escribano.) But without such proof, each instrument ought to bear the signature of the notary. “ Covenants made before a notary public carry along with them the proof of their truth by the signature of the notary.” (1 Domat, tit. 1, sec. 1, p. 144; and see 1 Partidas,

part 3, tit. 18, law 54.) Wanting the signature of the officer, though valid as a private instrument, it was not an authentic act capable of making proof by its mere production. Its execution must have been proved like any other private instrument, and it was error to admit it in evidence without such proof. The consequence is that the judgment must be wholly reversed.

Upon the question which has been mainly discussed in this case— that is, whether the plaintiffs, appearing to be tenants in common with persons not joined in the action, shall have judgment and a-writ of possession for their undivided interest, leaving the defendant’s possession undisturbed as to the residue, or shall recover the whole, as well for their co-tenants as themselves, and have a writ of possession to turn the defendant out, as it does not become necessary for the present disposition of the case, we do not think proper to express an opinion.

In view of the importance and difficulty of the question, and the conflict of authorities, we think it better to reserve that question until its decision shall become necessary. Reversed and remanded.