W. C. Heintz et al. v. M. L. Thayer et al., 92 Tex. 658

BROWN, Associate Justice. Mary L. Thayer and others, the heirs of W. W. Thayer, deceased, brought this suit to recover from Winifred C. Heintz and others, heirs of Edward Cochran, deceased, certain lands situated in Harris, Colorado, and Jasper counties. The petition alleged in substance that Cochran in his lifetime made, executed, and delivered to W. W.

Thayer a deed for the lands in question, which was placed upon the records for deeds in the several counties in which the land was situated, but the original of the said deed was in the possession of the defendants, who claimed that the acknowledgment of the same was defective. The plaintiffs prayed that the execution of the said deed be established, that they recover the land from the defendants, and that the claim made by the defendants be canceled.

Lock McDaniel, Esq., was appointed guardian ad litem, and answered with the other defendants by a plea of not guilty and a plea in reconvention, praying also that the cloud cast upon their title by the claim of the plaintiffs be removed. There were other allegations in the pleadings of the plaintiffs and defendants not material to be mentioned in this connection. The Court of Civil Appeals announced its conclusions of fact as follows: "Our conclusions of fact on the controverted point in the evidence, viz., whether or not Edward Cochran ever executed to W. W.

Thayer a conveyance of the land in question, is that the making and delivery of such a deed were made to appear, as explained in the opinion.” The plaintiffs offered in evidence a certified copy, from the records of Harris, Colorado, and Jasper counties, each, of what purported to be a deed from Edward Cochran to W. W. Thayer for the land sued for.

The certificate of authentication of the said deed is in the following language: “State of Louisiana, City of New Orleans. — Before me, Edward Hall, Commissioner of the State of Texas, appeared Edward Cochran, to me known, who signed his name to the above deed of conveyance for the considerations and purposes stated. In witness whereof, I hereunto set my hand and seal of office this 21st day of January, A. D. 1854. [L.

S.] “Edward Hale, Commissioner.” The defendants objected to the admission of the copies because the certificate of acknowledgment was not in accordance with the laws of this State, — that the clerks of the different counties were not authorized to record it, and a certified copy of such unauthorized record is not admissible for any purpose.

The court at the time stated orally to the jury "that the certified copy was not admitted as evidence in itself of title to the land in controversy, hut was admitted as a circumstance to be considered by the jury under the written charge to be given by the court, determining whether the deed of which said instrument purported to be a copy was ever executed and delivered.” The defendants excepted to the ruling of the court. Judgment was rendered for the plaintiff for the land, which the Court of Civil Appeals affirmed.

It is not claimed by the defendants in error that the deed in question was properly authenticated for record, but they insist that the copies made from the record books of the different counties were admissible under the following

article of the Bevised Statutes: “Art. 2306.

Copies of the records of all public officers and courts of this State, certified to under the hand and seal (if there be one) of the lawful possessor of such records, shall be admitted as evidence in all cases where the records themselves would be admissible; translated copies of all records in the Land Office, certified to under the hand of the translator, and the Com-, missioner of the General Land Office, attested with the seal of said office, shall be prima facie evidence in all cases where the original records would be evidence.” To make a copy admissible as evidence under this article, the thing copied must be a record of a public officer or of some court of the State and must itself be admissible if offered in evidence.

The point for determination is, did the transcribing of the purported deed from Cochran to Thayer upon the record books of the different counties named constitute a record of the county cleric of each of said counties within the meaning of the term as used in the law? In the case of Hubert v. Bartlett, 9 Texas, 97, there was deposited in the General Land Office an instrument in the Spanish language from which a translated certified copy was taken and offered in evidence and this court held that it was admissible because it was a “record” of that office, being properly deposited therein. In Patrick v.

Nance, 26 Texas, 299, one of the parties offered in evidence a certified copy from the General Land Office of the field notes of a survey which had been deposited in that office but had never been approved by the principal surveyor of the land district nor recorded as required by law.

The copy was admitted by the trial court, but this court reversed the case, saying: “The copy of the field notes from the General Land Office appears to have been improperly admitted in evidence, because the original, not having been approved or recorded by the principal surveyor, was not properly returned to, and did not become a record of, that office.” In the first case above cited, our court held that an authorized official act constitutes a record within the terms of our statute, and in the other, that an unauthorized act did not constitute such record, from which we think it may be said that a “record of an officer” is that which is made in the discharge of his official duties by doing

an act that he is empowered by law to do. This conclusion is supported by Ordway v. Conroe, 4 Wisconsin, 59, and by Barnes v. Easton, 1 Cranch C. C., 430. In the case of Ordway v. Conroe, cited above, a copy from the records of a circuit court of the United States was offered in evidence, but was excluded because it was not authenticated according to the act of Congress.

It was contended that the copy was admissible under a provision of the statutes of Wisconsin which reads as follows: “The records and judicial proceedings of any court of any State or territory of the United States shall be admissible in evidence in all cases in this State, where authenticated by the attestation of the clerk or prothonotary or other officer having charge of the records of such court, with the seal of such court annexed.” In discussing the question, that court said: “We think it can hardly be contended seriously that any and every paper, claimed to be ‘records and judicial proceedings/ authenticated by the signature of the clerk and the seal of the court, are by this act made competent evidence ‘in all cases in this State/ On the contrary, the record or copy of a record, if such it purports to be, must be complete in itself.

In other words, the calling it a record by the attesting clerk, or by the party offering it in evidence, does not make it so. A record of a court has a fixed judicial meaning, and certain requisites are essential to give to it the character which the term implies.” The “fixed characteristics” of a record are that it must be of and concerning a proceeding in court or within the official powers of an officer, and it must be made under such conditions that the officer was authorized by law to act and to do the thing done, whereby it can alone become a record within the meaning of the law.

Transcribing the deed in question upon the records of his office by a clerk of the county court was no more an official act than if it had been done by a total stranger, nor did it constitute a record because it was transcribed upon a book in which the records ought to be kept by an officer alone authorized to make such entry, for the reason that the act was neither permitted nor required by law. In support of its decision, the Court of Civil Appeals cites the case of Ammons v.

Dwyer, 78 Texas, 639, and the honorable Chief Justice of that court says: “If the entry is admissible as evidencing a circumstance, certainly the record book itself containing such entry would be admissible to show the entry.” This proposition rests upon the provision of the statute that such copy “shall be admitted as evidence in all eases where the records themselves would be admissible.” This is a plausible construction of the statute, but it rests upon an improper

interpretation of the word “records,” for if the writing upon the book be not the “record” within the meaning of the statute, that it is not admissible as a record and does not support the conclusion arrived at by the learned judge who wrote the opinion. The book is not the “record,” and the fact that the book, if it were produced in court, might be used to prove that there was such a -writing upon its pages does not bring it within the statutory rule which authorizes that proof be made by a certified copy. The “records” which must be admissible are the same that may be proved by certified copy.

The book is not the thing permitted to be proved by copy; therefore, the admissibility of the book does not authorize the use of a copy of an instrument written on the paper of the book.

It is the policy of the law to authorize the proof of official acts by the certificate of the officer who performed them or who is in possession of the record, because the certificate has the sanction of the official oath and is supported by official responsibility; but it does not permit an officer to establish by his official certificate and the seal of his office the fact that he did that which the law did not permit or authorize him to do.

That would be ex parte evidence, unsupported by the official oath or the responsibility of the officer, and the witness, if allowed to testify by certificate, would not be subject to cross-examination or to any tests of credibility which the law provides as safeguards to those engaged in litigation. In the case of Ammons v. Dwyer, 78 Texas, 639, Judge Collard, who wrote the opinion of the Commission of Appeals, which is approved by the Supreme Court, did not refer to

article 2306, and the question as to whether the copy from the record of deeds of Bexar County constituted a record was neither raised nor discussed in that case. Some of the language used by the learned judge appears to refer to the copy as if it were admissible as such without reference to the evidence of the witness who examined it.

In that case, however, the copy was examined by a witness who had once had possession of the original deed charged to be lost, and he testified that the copy examined by him contained the same matter as the lost deed, and the copy was therefore admissible to establish the terms of the deed in question without regard to its being a copy of any record. In approving that opinion, it was not necessary for the Supreme Court to pass upon the question that is raised and discussed in this ease, and, in fact, it does not appear to have been presented to that court by the briefs. We think that the case of Ammons v.

Dwyer can not be said to be authority upon the construction of

article 2306, but, in order that there may be no misunderstanding, that case is overruled in so far as it conflicts with this opinion.

Article 2306 was intended to prescribe the manner in which proof might be made of all official and judicial records not otherwise provided for in the many special provisions upon that subject contained in the statute, and the phrase, “where the records themselves would be admissible,” was introduced to guard against a construction that would admit in evidence copies of instruments which would not themselves be admissible to prove the same facts. We find no other error in the proceedings of the trial court. For the error indicated, the judgments of the District Court and Court of Civil Appeals are reversed and the cause remanded. ■ Reversed and remanded. Opinion delivered May 1, 1899.