T. J. Belcher et al. v. A. E. Fox et al., 60 Tex. 527

Stayton, Associate Justice. The appellants claim the entire land upon the ground that the deed purporting to have been made by their father to J. W. Massie, through which the appellees claim, was never in fact executed by him; and they further claim, in the event that deed is genuine, that they are entitled to one-half of the land through inheritance from their mother, the certificate upon which the land was granted being community property, and the purported sale by their father having been ihade after their mother’s death.

The plea of non est factum, filed by the appellants, put the burden of proving the execution of the several deeds named in it upon the appellees, and it becomes necessary to inquire whether the deeds "were so proved as to justify the court in permitting them to go to the jury. The land is situated in Navarro county. The deed purporting to have been made by E. H. Belcher to Massie bears date July 13, 1849; that from Massie to Wilson bears dute April 3, 1850; and that from Wilson to Jordan December 4, 1850.

The original deeds were not produced, affidavit of their loss having been made; by agreement the deeds were read from the record of deeds for Navarro county, subject to all legal objections which could be raised to the originals had they been produced. These deeds were recorded in Navarro county in 1870; all had subscribing witnesses who are shown to be dead, and purport to have been proved for record by some of the witnesses as early as March 16, 1853, this being the date of the proof for record of the last deed named. The land was patented to E. H.

Belcher, the father of appellants, on September 22, 1862, and he died on October 26, 1865. The deeds all purport to have been proved for record before James McWilliams, county clerk of Busk county, or his deputy. The only evidence offered by the appellees of the genuineness of the attacked deeds, if that be any evidence, was that the persons whose names appear as subscribing witnesses to the deeds, as well .as the officers before whom they purport to have been proved for record, were dead, and that they were persons of good reputation, resident in Busk county at the time the deeds bear date, as was also E. H.

Belcher. It further appears from the testimony of a witness that he located the land in controversy for F. M. Hanks, who claimed by a deed made to him by Jordan of date March 9, 1855, the execution of which was proved; but the records of the surveyor’s office showed that the person who made the location made it for another person than Hanks. The location was made October 26, 1861. From a certificate copied into the record of the paper purporting to be a deed from E. H.

Belcher to Massie, it would appear that that deed was recorded in Busk county on September 29, 1849, but there is no evidence whatever that the deed in fact was so recorded. Hanks conveyed to Peak December 7,1864, but the deed was not recorded until May 20, 1870. Peak conveyed to the appellees in June, 1875. The testimony of several witnesses seems to have been introduced Avithout objection, which, it is admitted in the record, proved that the reputation of Hanks as a land dealer xvas bad.

The appellants objected to the admission of the deeds, the execution of Avhich was denied, upon the ground that they Avere not sufficiently proved, and also moved to strike out the deeds after they had been read from the record, and the action of the court in admitting and retaining the deeds is assigned as error. We are of the opinion that the assignments of error based upon those matters are well taken. There Avas certainly no such proof of the execution of the deeds as the law requires.

The original deeds were not produced, and strong must be the corroborating facts to authorize the holding that a deed even thirty years old is genuine when the original is not produced, and a copy from the record, or the record, is relied upon to show even the existence of the paper. Such proof, at best, is but secondary. When-the deed itself is introduced, coming free from suspicion and from.' the proper custody, even then facts corroborative of its ancient existence and genuineness must be proved. Stroud v. Springfield, 28 Tex.,. 663; Newby v.

Haltaman, 43 Tex., 317; 1 Greenleaf, 570; 1 Wharton’s Evidence, 732, 733; Starkie on Evidence (9th ed.), 521; Holmes v. Coryell, 58 Tex., 685.

When acts are relied upon as corroborative, they should be such as are contemporaneous with the life of the person Avho is claimed to have executed the instrument, if he lived for many years after the apparent date of the instrument, if not nearly contemporaneous, with the date of the instrument itself; be open in their nature, and: such as evidence a clear claim of title consistent only with such am instrument as is claimed to have been made; the mere existence of the instrument is not enough.

There Avas no such evidence in the-case as showed with reasonable certainty that two of the deeds were-ever executed; that two of the deeds recorded in Navarro county in 1870 had an existence long before the time they were there filed for record, nor that any claim to the land was ever openly made during the life of E. H. Belcher. As the judgment will have to be reversed, comment will not be-made upon the evidence; at another trial, with such additional evidence as may be offered, it may be proper to let the deeds go before a jury for their consideration.

The court permitted a deed made by Wilson to Jordan, and also a. deed from Jordan to Hanks for the Larkin gross survey situated in Henderson county, and in no way connected with the land in controversy, to be read in evidence, over the objection of appellants. This evidence was certainly irrelevant, and could have no legitimate bearing upon the issues involved in the case.

There may have been transactions between Wilson and Jordan and between Jordan and Hanks, in reference to other lands, in all respects legal; but that this may have been so could not tend, in the remotest degree, to prove that the chain of transfer from E. H. Belcher down to Jordan, under which the appellees claim, was genuine. Its admission was calculated to induce the jury to believe that they might look to it for some purpose, and they may have been thereby misled.

There were no facts in the case which called for any charge of the court upon the question of outstanding title to the land in controversy in the estate of John Belcher, or its assigns, and such a charge should not have been given. The whole theory of appellees’ case is that their claim is based upon a conveyance from E. H. Belcher to Massie of a part of the Belcher certificate, and that this, in part, was located by Hanks on the land in controversy.

There is no evidence tending to show that the land in controversy was located by John Belcher, or by some person for him, under that part of the certificate conveyed to him. If the deed from E. H. Belcher to Massie was genuine, the certificate, being community property, and having been conveyed after the death of the mother of appellees, in the absence of some fact giving their father the power to convey it, they would be entitled to recover one-half of the land, less the value of such property as they had received from their father or from his estate.

The true rule as to time for determination of the value of property received from the surviving parent or from his estate, and for determining the value of community property sold by the surviving parent without authority, is that both should be valued as at the time the property is received from the surviving parent or his estate. Sparks v. Spence, 40 Tex., 702. The charge of the court in this respect was erroneous, and the charge asked by the appellants was substantially correct, except that it did not inform the jury at what time the land should be valued.

The other assignments of error relate to matters which will not probably arise upon another trial, and need not be considered. For the errors indicated the judgment of the court below is reversed and the cause remanded. -r> Reversed and remanded. [Opinion delivered December 14, 1883.]