F. A. Waters et al. v. Susan Spofford, 58 Tex. 115

Stayton, Associate Justice. It is insisted that the certified copy of the deed from Thomas Sims to Charles M. Gould was not admissible because not shown to have been properly recorded, in that the certificate of acknowledgment made on 27th December, 1838, before the clerk of the county court of Hacogdoches county, does not appear to be authenticated by the seal of that officer, and for other reasons, which are entirely untenable and which will not be further considered in this opinion.

It may be questioned whether, at the time the acknowledgment was taken, it was necessary that the certificate authenticating that fact was required to be under the seal of the county court, when the acknowledgment was made before the clerk who was to record it, or before the court. Hart. Dig., 2752, 2755. The land in controversy, at the time the acknowledgment was made, was most probably in Hacogdoches county. The act of March 16, 1840 (Hart.

Dig., 2768), seems to have required the certificate of acknowledgment to be authenticated by the seal of the officer talcing it, only when taken before some officer other than the clerk who was to record it. The act of May 12, 1846 (Hart.

Dig., 2785, 2790, 2794), expressly provided for the use of a seal in certifying acknowledgments taken before any officer, as no preceding act had done in reference to county clerks; and it provided that “they shall also record all . „ .» instruments authorized by law to be recorded by them, which were executed previous to the time this act takes effect, and which are acknowledged or proven in the manner provided for by this act, or by the laws which were in force at the time of such acknowledgment or proof;” thus recognizing that the manner of taking and certifying acknowledgments before that time was different to the mode prescribed thereby.

If, however, the certificate of the county clerk should have been authenticated by his seal, and was not, a matter which is not made certain, as the original paper was not before the court upon the trial, we are of the opinion that the record would be good under the acts of March- 17, 1811 (Hart. Dig., 2776, 2777), act of May 12, 1816 (Hart. Dig., 2789), and the act of 9th February, 1860 (Pásch. Dig., 5021, 5022); the first of which had reference to acknowledgments and records made before its passage as well as to records made after that time upon prior acknowledgments. Butler v. Dunagan, 19 Tex., 565.

These statutes, as was said in the case above referred to, were “ intended to remove objections to the sufficiency of the registry of deeds upon such acknowledgments, and to provide for their recording in future. It was a healing and enabling statute, and ought to be construed liberally.” The certified copy of the deed from Charles M. Gould to Otis Wheeler was objected to, upon the ground, first, that Wheeler, being the grantee, could not make the affidavit of the death or non-residence of the subscribing witnesses to the deed from Gould to him.

We are of the opinion that the grantee was competent to make such proof preliminary to the introduction of the proof of the handwriting of the grantor, and of at least one of the subscribing witnesses, by other witnesses. The law then jn force (Hart.

Dig., 2792) required the making of such an affidavit, but did not declare who might make it; it had to be made as the basis for the introduction of proof not strictly primary in reference to the subject, and there was no more objection to a grantee making such an affidavit for that purpose than to the making of an affidavit by a party to a suit as to the loss or destruction of a written instrument, as the basis for the introduction of secondary evidence of its contents.

The facts were to ,be established by persons not interested, after such basis was laid; and as the chain of title offered in evidence does not show that they were interested, the contrary presumption must be indulged. The affidavit of Wheeler was sufficiently full, as were the statements of the witnesses who testified as to the signatures of the maker of the deed and one of the subscribing witnesses thereto.

The certificates of the officer who took the affidavit of Wheeler, and of the witnesses who proved the necessary signatures to the deed, were also sufficiently full; and the only further objection to the evidence in this respect offered, was, that while the grantee and the witnesses who swore to the signatures of thé maker, and one of the subscribing witnesses to the deed, speak of the witness as “ Henry. G. Richardson,” the copy contained in the record shows that “A. Gr. Richardson,” and not “Henry Gr. Richardson,” was one of the subscribing witnesses.

Ho objection upon this ground was offered to the deed Avhen it was introduced, and not until the motion for new trial was made does the matter seem to have been presented to the court. As thus presented, the objection is not entitled to receive the favorable consideration to which it might have been entitled if presented at a time when the seeming discrepancy might have been explained.

If, however, the objection had been earlier made, it is not believed that it should have prevailed, for the affidavits of the two witnesses who testified to the genuineness of the signature of the subscribing witness, were made with the deed before them, and they in substance state that the signature of one of the subscribing witnesses to the deed is the genuine signature of Henry Gr. Richardson. If they knew that thus the person known to them as Henry Gr.

Richardson signed his name, and that the signature attached to the deed was his genuine signature, as he was accustomed to write it, that was sufficient, whatever may have been his true name. If they had intended to swear falsely, no such mistake in name would have been made, with the - deed before them, as it evidently was from his affidavit. The probability is, that in copying the affidavit more than once, a mistake has been made by the copyist, or that Henry Gr. Richardson was accustomed to sign his name as it appears to the certified copy offered in evidence.

Such ought to be the presumption after the lapse of more than a quarter of a century. The identity of the land as described in the deed from Otis M. Wheeler to Sam. T. Smith, which forms a link in the chain of appellee’s title, is sufficiently shown. It was granted to Isaac Lee as an assignee, and the fact that the patent states that he was the assignee of Riere Techs, while the conveyance states that he was the assignee of Riere Tesia, is not sufficient to raise a doubt, in connection with the other proof in the case, as to the identity of the land.

It seems that the land in controversy was sold for taxes in the years 1868 and 1869, and that appellants thereafter instituted a suit in the district court for Kaufman county against the sheriff of that county, to compel him by mandamus to make a deed to them for the land so sold and by them bought, and a judgment in that cause was rendered in their favor. Heither the appellee, nor any one through whom she claims title, was a party to that suit.

On the trial of this cause, the judgment rendered in that cause was offered by the appellants as evidence of title in them, and upon objection the evidence was excluded. [Opinion delivered November 23, 1882.] This is assigned as error, and it is claimed that such judgment -was a judgment in rem and conclusive evidence of their title. No such effect can be given to such a judgment, and it was properly excluded, the appellee not being a party to the suit in which it was obtained.

Had it been a judgment in a proceeding instituted against the property to subject it to sale for the payment of taxes due thereon, under a law authorizing such a proceeding, in which a court of competent jurisdiction had acquired jurisdiction over the property, with some show of reason, such effect might be claimed for a judgment and sale made thereunder. The appellants offered in evidence a deed made by the sheriff of Kaufman county as tax collector, which purported to be made to appellants as purchasers at a sale made by him for taxes due on a league and labor of land “ patented to P.

Tesia ” for the year 1878, and they also offered some evidence in regard to the regularity of the assessment and proceedings which preceded the sale; and it is claimed that that deed passed the title to land in controversy to the appellants. Without considering other questions Avhich might affect the validity of the deed in question as a muniment of title, it is sufficient to say that the description of the land, as described and -attempted to be conveyed by the deed, is so uncertain and indefinite that no title whatever would pass thereby, however regular the proceedings anterior to its execution may have been.

The description of the land conveyed by the deed is as íoIIoavs : “ One league and labor of land patented to P. Tesia, and known as survey No. 412, situated in Kaufman county, Texas, about four miles northeast of the toAvn of Kaufman, less the sum of five hundred and eighty-eight acres claimed by Thomas A. Bynum, and fifteen hundred and thirty-one acres claimed by Leon & IT.

Blum out of said league survey.” The provisions of the constitution and laAvs in reference to the effect to be given to tax deeds are very stringent, but to constitute a valid tax deed there must be such description of the land conveyed thereby as will identify it. R. S., 4755, 4756; Wofford v. McKinna, 23 Tex., 44; Blackwell on Tax Titles, 423 et seq., and citations; Cooley on Taxation, 286 et seq., and citations. There being no error in the judgment, it is affirmed. Affirmed.