Emberry Cannon v. W. S. and W. B. Cannon, 66 Tex. 682

Willie, Chief Justice. The first assignment of error is as follows “The court erred in not sustaining defendant’s special exceptions to plaintiffs’ supplemental petition filed November 6, 1885.” The special exceptions were three in number, and set up two separate, distinct and independent objections to the petition. Which one of these objections the court should have sustained is not pointed out by the assignment. The proposition seems to refer to either the first or second exception, we cannot tell which Besides the assignment, if improper, cannot be aided by the proposition.

It must stand or fall, accordingly as it complies with the rules, which this does not, and will not therefore be noticed The admission in evidence of the certified copy of the judgment of the county court of Bockwall county was proper. Art. 2257, Revised Statutes, does not apply to such a judgment, but to instruments, the originals of which are permitted or required to be recorded in the county clerk’s office under the registration acts. Judgments of another court are governed by Art. 2252 of the Revised Statutes, and the certified copy in evidence fulfilled the requirements of that article.

The objections taken below to the reading in evidence of the venditioni exponas were different from those urged in this court. It was not objected below that the paper did not come from the custody of the proper officer, if so, the plaintiffs might have supplied proof of that fact. An objection not taken below to a paper offered in evidence cannot be taken for the first time in this court. Sharp v. Schmidt, 62 Tex., 263; Railway Company v. Gage, 63 Tex., 568. It was not error to admit in evidence the constable’s deed to the land.

Ketehum, who purported to act as constable in making the deed, and who signed it as such, testified to the genuineness of the signature. The fact that he signed the deed as constable was prima facie evidence of his authority, and there was no proof introduced to the contrary. This was held by this court in the case of Deen v. Wills, 21 Tex., 642, in reference to a receipt purporting to be signed by a person as tax collector, when there was no proof that he held the office at the time it was signed. The rule holds good in a case like the present.

Besides, the court judicially knew that Ketehum was constable at the time the deed was signed. Judicial knowledge extends to all county officers, and has often been held to embrace sheriffs and marshals. A constable has the power of a sheriff in executing the process of the district court and carrying out its orders, and his authority and signature must be known to them. 1 Greenl. on Ev., sec. 6, and authorities cited. The court did not err in refusing to give the first special charge asked by the defendant.

This charge ignores the fact that the grantees in the deed were, at the date of its execution, the minor children of the appellant living with him, in which case, the presumption of law would be that in taking the deed in their name, their father intended the land as a gift or advancement to them. Higgins v. Johnson, 20 Tex., 393, 394; Sanfley v. Jackson, 16 Tex., 579. This charge also overlooks the point made by the appellees that the deed was made by their father to them for the purpose of defrauding his creditors.

It, in fact, gives the land to the appellant if the appellees did not pay the purchase money, no matter what may have been developed by the evidence as to the intention of their father in reference to the title. This would have been in direct contradiction of the court’s general charge upon these questions, which was a correct exposition of the law bearing on them. The seventh assignment is as follows: “The court erred in refusing to give the jury the special charge Ho. 2, asked by defendant.” If the charge alluded to embraced only one instruction, this assignment would sufficiently comply Avith the rules.

But under the designation of a single charge it includes four distinct instructions, each making a separate proposition, and some of them have no relation whatever to each other. The assignment of error is actually taken to the refusal of the court to give several charges, and is, therefore, in violation of the rules, as has been frequently held by this court. Byrnes v. Morris, 53 Tex., 22; Railway Company v. Gilbert, 64 Tex., 536. The third special charge asked by the appellant was not the law of the case. There Avas no question of specific performance of a voluntary gift before the court.

The gift to the appellee, if made at all, was fully consummated by the execution of the deed, and was not executory. There Avas no mere promise to give, but an absolute gift evidenced by Avriting, and taking effect in presentí-, and as the grantees were, at the time, children of tender years, living with their father upon the land, it was accompanied by all the possession which they were capable of receiving under the circumstances. This is the theory of the appellees’ case so far as the gift to them of the land is concerned.

The appellant’s theory is that there was no gift whatever, either executed or executory, but that the appellant’s promise was that the appellees should have the land when they paid the purchase money given to Davis for it. Any charge, therefore, that set forth what circumstances would authorize the appellees to compel a specific performance of a gift was not authorized by the evidence, and would have misled the jury.

It is enough; to dispose of the fourth charge, to say that it required a verdict for the appellant, if the constable’s sale was void, or if the judgment under which the land was sold had been paid off; whereas there were other important issues which, if found for the appellees, entitled them to a recovery. The court properly refused to withdraw from the jury the issues as to the gift of' the land, and the intent of appellant to defraud his creditors in having the deed made to his sons, and to place the case before them solely on the legality and binding force of the constable’s sale.

The twelfth assignment is not well taken as is apparent from what we have said, and the authorities we have referred to under the sixth assignment of error. What we have said as to withdrawing one of the issues from the jury, is applicable also to the thirteenth assignment of error. Had the charge not been qualified as it was by the court, no issue as to the constable’s sale would have been submitted to the jury. We find no error in the judgment, and it is affirmed. Affirmed. [Opinion delivered November 12, 1886.]