Electra C. Hancock et al. v. The Tram Lumber Co. et al., 65 Tex. 225

Stayton, Associate Justice. The deed from A. C. Allen to H. R. and S. L. Allen, of date January 16, 1839, embraced land in Harris county, and was there recorded. A certified copy of that deed was offered as evidence after the proof of the inability of the plaintiffs to produce the original was made, and it was excluded presumably upon the ground that it was not admissible because never recorded in Jasper county, in which the land in controversy is situated. It is not contended that the deed was not properly recorded in Harris county.

The statute provides that “every instrument of writing which is permitted or required by law to be recorded in the office of the clerk of the county court, and which has been or may be so recorded after being proved or acknowledged in the manner provided by the laws in force at the time of its registration, shall be admitted as evidence without the necessity of proving its execution; provided, etc., * * And whenever any party to a suit shall file among the papers of the cause an affidavit stating that any instrument of writing, recorded as aforesaid, has been lost, or that he cannot procure the original, a certified copy of the record of any such instrument shall be admitted in like manner as the original could be.” R.

S., 2257. The statute further provides that “all deeds, conveyances, mortgages, deeds of trust, or any other written contract relating to real estate, which are authorized to be recorded, shall be recorded in the county where such real estate, or a part thereof, is situated.” R. S., 4333.

TMs last provision in the statute is found in immediate connection with that part of the act of February 5, 1840, regulating registration which declares that all such instruments as above described ‘1 shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged, or proved, and filed with the clerk to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof, or without valuable consideration, shall, nevertheless, be valid and binding.” R. S., 4332.

The primary and leading purpose of registration, under the laws of this state, is notice, and that all persons may be advised as to the place where they may get information as to the state of the title to land, the law requires the registration to be made in the county in which the land, which-may be the subject of inquiry, is situated, in whole or in part.

We do not think, however, that the registration of a deed, or other instruments which affects the title to several separate or distinct tracts of land situated in different counties, in a county in which some of the tracts may be situated, would be such registration.as would operate as notice of the deed or other instrument, in so far as the same might embrace lands not situated in the county in which registration is made.

If, however, such deed or instrument affects the title to land in one tract, but partly in two or more counties, then registration in either county would be notice, for persons are presumed to know in what county lands in which they propose to deal are situated, and, if situated in two or more, it becomes their duty to examine the registry of every county in which registration of a deed or other instrument affecting title to the particular tract of land may, under the law, be made. The purpose of the provision of the statute first quoted, however, is not to give notice, but to establish a rule of evidence.

Under that statute, if an instrument required or permitted by law to be recorded is acknowledged or proved for record and recorded as the law requires, upon compliance with the other provisions of the law, the original stands as though its execution was proved as at common law, unless an affidavit of forgery be filed, so stands a certified copy, if the inability of the person offering it to produce the original be shown.

There can be no question that the certified copy offered could have been used as evidence in an action in Harris county, in any suit involving title to land situated in that county and conveyed by the deed. Why? Certainly for no other reason than that, under the statute, the execution of the original is deemed to be sufficiently proved by its valid registration. If the acts which ultimated in valid registration in Harris county have the effect to establish prima Jade the execution of the deed, the place where it is to be used in evidence cannot affect the question.

If valid registration establishes execution it does so for all purposes for which the deed may be used, and at all places, subject to the law which makes this registration in effect prima fade proof of execution. There cannot be a rule of evidence in force in this state which makes a deed evidence of title in one county and not in another, -except as title may be affected by the question of notice. This question was considered by the supreme court of the United States in the case of McKeen v. Delaney, 5 Craneh., 29.

In that case Chief Justice Marshall, in the opinion given in the case, said: “ This deed was, unquestionably, properly admitted to record in the office of the city and county of Philadelphia. It conveyed lands lying within that city and county, and on any construction of the act, might be there recorded. * * * The whole deed then is evidence by the letter of the act. The whole is a copy from the record. If the validity of the conveyance depended on its being recorded in the county where the land lies, then a deed might be good as to one tract, and bad as to another.

But the deed is valid, though not recorded, and the question is whether the copy is evidence as to everything it contains. The execution of the deed is one entire thing, and is proved so as to admit the instrument to record. The copy, if true in part, is true in the whole, and if evidence in part, must, under the act, and on the general principle that it is a copy of a record, be evidence in the whole.” The same ruling was made in the following cases : Simms’ Lessees v. James Read, 3 Tenn. (Cooke), 345; Lessees of Scott v. Leather, 3 Yates (Penn.), 184; Jackson v. Rice, 3 Wendell, 180.

The inventory of the estate of J. K. Allen, filed in the probate court for Harris county, filed and sworn to by A. C. Allen on September 12, 1838, showing that the land in controversy was owned by J. K. Allen and himself as partners, was admissible, if for no other reason, because it contained, as did the deed before referred to, declarations of A. C. Allen, under whom the defendants claim, to the effect that he had an interest in the land at the time of the death of J. EL. Allen, other than such as he might acquire by inheritance.

Declarations of the person through whom defendants claim, made while title was in him, would be admissible as against them, to show the extent of his interest and the character of his holding. For the reasons given above, the recitals contained in the deed made by A. C. Allen to H. R. and S. L. Allen, of date March 18,1840, ought to have been admitted. The deed of date March 18, 1840, made by H. R. and S. L. Aliento Harvey Allen, contained recitals of the manner and extent of the holding of A. C. Allen, tending to show that the land in controversy was owned by A. C. & J. K.

Allen as partners, and in so far as it contained such recitals was excluded. This action of the court is assigned as error, but it would not ordinarily be error unless it was shown that the defendants in some way hold under the persons who made that deed. It appears, however, that A. C. Allen, under whom the defendants claim, on the day the deed was made, ratified it, and used language in his deed, by which the ratification was made, substantially the same as recited in the deed from H. R. and S. L. Allen to Harvey Allen. Under this state of facts, it must be held that A. C.

Allen had knowledge of the recitals in the deed which he ratified, and that they were admissible against persons claiming through him. The recitals tended to show the extent of the interest he could convey otherwise than as a surviving partner, and tended to show that he claimed power to convey the whole as the surviving partner; and, by ratifying the deed, he must be held to have ratified all recitals which were material to show the extent and character of the interest which he intended and claimed the power to convey.

We have not thought it necessary to consider whether related, as were all the parties to the deeds rejected, to their subject matter and to each other, the deeds ought not to have been admitted with all their recitals as ancient instruments. The near approach of the close of the term precludes an examination of the questions suggested by the appellees, as to the effect of the deeds made by A. C. Allen upon any title he may have acquired after they were made; besides, this question may not be necessary to the future disposition of the case.

The extent to which one tenant in common may recover against persons showing no right is well settled. Sowers v. Peterson, 59 Tex., 217; Pilcher v. Kirk, 60 Tex., 162. For the errors mentioned the judgment will be reversed and the cause remanded. Reversed and Remanded. [Opinion delivered December 21, 1885.]