Younge v. Guilbeau

A STATUTE of Texas, relating to the registry of deeds, &c., provides as follows:

'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 proven or acknowledged in the manner provided for by the laws in force at the time of its registration, shall be admitted as evidence, without the necessity of proving its execution; provided, the party who wishes to give the same in evidence shall file the same among the papers of the suit in which he proposes to use it, at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party, or his attorney, of record; and unless such opposite party, or some other person for him, shall, within one day after such notice, file an affidavit that he believes such instrument of writing to be forged. And whenever any party to a suit shall file among the papers of the suit 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.'

With this statute in force, Mrs. Younge brought trespass against Guilbeau and eleven others in the Federal Court for the Western District of Texas, to try the title to a lot of ground in that district. She proved that the lot belonged originally to one Nixon, her ancestor, now deceased, and that she was his sole heir. Guilbeau and the others, defendants in the case, admitting the original ownership alleged, set up that Nixon had conveyed the lot, by deed, in his lifetime to a certain Shelby; from whom they, Guilbeau and the other defendants, derived title to themselves.

The suit thus involved, in its merits, the existence of a deed from Nixon to Shelby.

No original deed to Shelby was produced. A document, however, purporting to be a deed executed by Nixon to Shelby, embracing the premises in question, bearing date the 10th day of October, 1838, and acknowledged the 29th of the same month, had been filed for record on the 7th of December, 1846, in the office of the clerk of the proper county, in Texas, and was afterwards in due form placed on the records of the office. A certified copy of this instrument was offered in evidence by the defendants and admitted against the objection of the plaintiffs.

The defendants, on their side, and as a foundation for the admission of this certified copy, relied upon various affidavits by one of the defendants, and the counsel of the others, to show a loss of or inability to procure the original. None of the affidavits, however, though circumstantial enough, were clear and direct to this point; nor did any of them show, plainly, and as a matter of fact, that the deed (genuine or forged) which had been recorded, might not yet be in the possession or control of some of the numerous defendants.

The plaintiff, on her side, and in anticipation that this certified copy instead of any original would be offered in evidence, had filed an affidavit under the statute, that the original instrument purporting to be a conveyance from her ancestor to Shelby, and of which a copy was now offered, was, as she verily believed, 'forged.'

The court charged the jury with respect to the effect of this affidavit, as follows:

'It furnishes no proof whatever to the jury, that such deed is a forgery. It merely lays the foundation, or affords a basis, upon which the plaintiff might introduce evidence to sustain the charge, and show to the satisfaction of the jury, if she could, that it was, in fact, a forgery.'

And further, in the same connection, and on the same point, the court refused the following instruction, asked by the plaintiff as to the effect of the affidavit, to wit:

'It devolves upon the defendants, in order to enable them to hold the property under the said deed, to show, by evidence satisfactory to the jury, that the said deed was, in fact, signed, sealed, and delivered by Nixon in his lifetime. Otherwise the fee (the legal title) to the property remained in him at the time of his death, and was cast, by descent, on his heirs.'

As to the delivery of the deed by Nixon to Shelby, the later testified that he never knew of the existence of the deed until after the death of Nixon, and that he never made any claim to the property; and the evidence showed that the deed and the property which it purported to convey remained in the possession and control of the grantor until his death.

The court, at the instance of the defendant, charged the jury on this head as follows:

'This suit is not to be regarded as the contest of creditors against the deed, nor as a contest between deeds of different dates; but as a contest, just as though Nixon himself was the plaintiff; his heir being bound by all his acts. And if he made the deed, the question of consideration is of no consequence, because as between Nixon and Shelby, or Shelby's vendors, the deed was binding, whether there was any consideration or not, or whether the deed was actually delivered to Shelby or not. If it was Nixon's deed, and Shelby acted under it, Mrs. Younge is bound by those acts.'

The defendants had judgment, and the plaintiff brought her writ of error here.

Mr. Reverdy Johnson, for the plaintiff in error; Mr. G. W. Paschall, contra.

Mr. Justice FIELD delivered the opinion of the court.