Henry Sample v. A. D. Irwin and Wife, 45 Tex. 567

Gould, Associate Justice. The deed of trust was not properly authenticated for record, and was not admissible in evidence as a registered deed. In the case of Brown v. Moore, 38 Tex., 645, an acknowledgment of a deed of trust made before a trustee, interested to the extent of his commissions, was held invalid. (See also Stevens v. Hampton, 46 Mo., 406.) In this case the acknowledgment was before an agent of the firm, for whose benefit the deed was made, his agency appearing on the face of the deed. If the fact of agency raises a presumption of pecuniary interest, the ease of Brown v. Moore is in point.

But whether such be the presumption or not, we think that one who identifies himself with the transaction by placing his name on the face of the instrument as the avowed agent of one of the parties, is not competent to give it authenticity as an officer. We have been cited to no case recognizing the validity of such an acknowledgment; on the other hand, it has been assumed as too plain for doubt that a person cannot take an acknowledgment of a deed to himself. (Groesbeck v. Seeley, 13 Mich., 329; Dissaume v. Burnet, 5 Iowa, 103; Beaman v.

Whitney, 20 Me., 431.) The evidence of the execution of the deed of trust was certainly secondary in itss character, and no sufficient predicate was laid for its admission. That the residence of the subscribing witness was unknown, was not enough. The affidavit should have shown that diligent inquiry had been made for them. (1 Greenl., secs. 572-574; White v. Holliday, 20 Tex., 679; Craddock v. Merrill, 2 Tex., 494.) ■White v.

Holliday establishes, as an exception to the rule requiring the execution of a deed to be proved by one of the subscribing witnesses, that the maker of the deed himself may, when called on by a litigant claiming under the deed, prove that he executed it. The evidence in the case was not sufficient under the ruling in White v. Holliday, and the deed was properly executed. The coiut did not err in instructing the jury that the defenclant took no title under the judgment of foreclosure and sheriff’s sale.

Under our view of the case this instruction would have been correct, even if the execution of the deed of trust had been established and notice of it brought home beyond question to McFadin and wife and Mrs. Irwin. When this suit to foreclose the hen was brought against Woodford, the conveyance by Woodford to Eliza McFadin, and by the McFadins to Mrs. Irwin, were of record, and the plaintiffs in that suit had notice that Mrs. Irwin claimed the land under conveyances which certainly gave her the right to redeem, and vested in her such a title as made her a necessary party to the suit.

Hot having been made a party, her rights were not affected by the decree or sale. (Byler v. Johnstons, decided at present term.) The suit was one of trespass to try title, and no issues were presented by the pleadings involving any other question than that of title. Whether Mrs. Irwin held with notice of, and subject to, the deed of trust or not, the record shows that she acquired a title of which she was not divested by the foreclosure and sale against Woodford, and which gave her the right to the possession of the land recovered by her. The judgment is affirmed. Aeeirmed.