J. L. Storey, Adm'r, v. J. W. Flanagan, 57 Tex. 649

Stayton, Associate Justice. There were two issues presented to the jury in this cause, the determination of either of which against the plaintiff was decisive of the cause. These issues were: 1st. Was the deed from Russell Williamson to Benjamin Fuller a forgery or not? 2d. Was the deed to Brookfield by Frost Thorn, who purported to ’act as substituted attorney in fact for Williamson, the original grantee, made under a power of attorney executed to him by Franklin and E. M. Fuller under a power of attorney to them, executed by Williamson, which authorized such a substitution?

The first of these questions was fairly submitted to the jury by the charge of the court, and whether the jury found against the plaintiff upon this issue or not, we cannot tell from the general verdict for the defendant. The evidence bearing upon the question of the genuineness of that deed was conflicting, and although we might be of the opinion that the evidence greatly preponderated in favor of its genuineness, we would not be authorized to set aside the verdict of the jury upon that ground, unless it was apparent that the verdict was wrong.

In view of the fact that in this cause a second suit may be brought, comment upon the evidence offered by the respective parties would not be proper. We fully appreciate the difficulty of bringing direct evidence to prove the genuineness of a deed made forty-four years ago, or to prove that such a deed is a forgery; and in view of such difficulty, the law wisely throws around such instruments many presumptions to sustain them.

They are said to prove themselves when they come from the proper custody, and are free from surroundings which justly arouse suspicion; and when they so come, no proof of their execution is required unless oath of belief that they are not genuine is made. Whether such an oath made in reference to an ancient document ought to shift the burden of proof of its genuineness "in all cases, need not be considered in this case.

It would seem that to shift the burden of proof in some such cases, the affidavit should be based upon something more than mere belief, and should be made by some person who has means of knowledge. Such an oath was made in this casé by a person who, in our opinion, under the statute, was authorized to make it. The parties each brought evidence bearing upon the question, and the jury may have found that the deed under which the plaintiff claimed was not genuine.

If, however, such was not their finding, the judgment could not be disturbed, if they found that the deed to Brookfield was executed under the powers with which that deed upon its face purports to have been executed, for it is the older deed; and while there are averments in the pleadings of the plaintiff, to the effect that Fuller bought the land and paid a valuable consideration therefor, without notice of the conveyance by Williamson to B.rockfield, yet there is no proof of these facts.

The deed to Brookfield purports to have been executed on the 14th of October, 1835, and there can be but little doubt of its execution. The main question in regard to it was, did the power under which it appeared to have been executed actually exist? In many cases which have been before this court, it has been held that a jury was authorized to presume the existence of a power under which an ancient deed purported to have been executed. Among them are the following cases: Daily v. Starr, 26 Tex., 562; Hooper v. Hall, 35 Tex., 83; Johnson v. Shaw, 41 Tex., 431; Johnson v. Timmons, 50 Tex., 531.

The deed from Williamson to Brookfield contains the following recital, made by the judge of first instance before whom the same was executed: “ Appeared in their owTn persons, whom I declare to know, citizen Frost Thorn of this town, substitute attorney of citizen Bussell Williamson of the district of San Augustine, as appears from a judicial power executed this day by citizens Franklin and E. M. Fuller, attorneys of said Bussell Williamson (which power exists in this my court), and citizen William Brookfield, and the first party said,” etc.

The officer also certifies that the testimonio was also presented to him, and it appears that Franklin Fuller made application for the grant to Williamson. .

These facts appearing as they do, in the face of the conveyance made before a qualified officer, and in the face of the grant, taken in connection with the subsequent conveyances and situation of the parties,— Brookfield being the surveyor who but the day before made the survey upon which the grant on that day issued,— are believed by the majority of the court to be sufficient to have authorized the jury to find that Thorn had the power to make the conveyance. The writer, in view of all the facts of the case, has doubts as to the correctness of this conclusion.

Such being the conclusion, for the reasons before stated comment upon the evidence bearing upon this question will not be indulged. The charge of the court upon this matter left the question of power, or no power, fairly to the jury, which must have found either that Thorn had power to execute the deed to Brookfield, or that the deed to Fuller was a forgery; or they may have found both of these issues against the plaintiff.

Such being the case, even if we were satisfied that the evidence upon either one of these issues was not sufficient, we could not reverse the judgment; for the plaintiff could not recover if the deed upon which he relied was a forgery, whether Williamson had ever sold or not; and if it was not a forgery, but the deed to Brookfield was executed by Thorn in pursuance of a valid power, then whether the defendant had that title or not, it being the older, would be, as outstanding title, a good defense to the action. Hooper v. Hall, 35 Tex., 87; Johnson v. Shaw, 41 Tex., 435.

We deem it proper to say that the court did not err in admitting in evidence the certified copy of the conveyance to Brookfield. It was an archive in the office of the clerk of the county court of Nacogdoches county, as certified by him, and a certified copy was admissible without proof of the execution of the original. Pasch. Dig., 3717; Hubert v. Bartlett, 9 Tex., 102; Andrews v. Marshall, 26 Tex., 216; Hooper v. Hall, 35 Tex., 86. This view disposes of the case, and it is not necessary to consider . the various assignments of error which raise questions upon the admissibility of evidence any further.

Affirmed, [Opinion delivered November 23, 1882.]