OpenJurist

87 US 264 McPhaul v. Lapsley

87 U.S. 264

22 L.Ed. 344

20 Wall. 264

McPHAUL
v.
LAPSLEY.

October Term, 1873

1

ERROR to the Circuit Court for the Western District of Texas; the case being thus:The State of Texas has made a succession of statutes, on the subject of recording instruments, relating to the titles of real estate. They are thus:

2

1. An act of 20th December, 1836, after requiring all persons who claim lands, by deed, lien, or any other color of title, to record their instruments of title in the clerk's office of the county where the land lies within twelve months from the 1st April, makes it, by the thirty-fifth section, the duty of the clerk to record all deeds, conveyances, mortgages, and other liens, and all other instruments in writing, provided that one of the witnesses shall swear to the signature of the signer, or he, himself, shall acknowledge the same.

3

The fortieth section enacts that no deed, conveyance, lien, or other instruments respecting lands, shall take effect as to third persons until proved and recorded.

4

2. An act of 10th May, 1838, repealed the limitation of twelve months, in the act of 1836, just referred to.

5

These acts are cited by the Supreme Court of Texas, in Guilbeau v. Mays,1 with the statement that subsequent legislation had not materially changed them.

The subsequent legislation is thus:

6

3. An act of January 19th, 1839, makes it the duty of county clerks to record all 'deeds, conveyances, mortgages, and other liens affecting the title to land; provided that one of the subscribing witnesses shall swear to the signature of the signer, or he, himself, shall acknowledge the same before the clerk,' &c. All laws in conflict are repealed.

7

The act further provides in its second section (and the provision bears specially upon this case), that 'copies of all deeds, &c., when the originals remain in the public archives, and were executed in conformity with the laws existing at these dates, duly certified by the proper officer, shall be admitted to record where the land lies.'

8

4. An act of May 12th, 1846, makes clerks of the county court recording officers for their several counties.

9

The fourth section makes it their duty to record 'all deeds, mortgages, conveyances, deeds of trust, bonds, covenants, defeasances, or other instruments of writing of and concerning any lands.'

10

The fifth section makes similar provision for marriage contracts, powers of attorney, and official bonds.

11

The seventh section directs the acknowledgment to be made 'by the grantor or person who executed the instrument in writing.'

12

The eighth section provides for proof being made by the subscribing witnesses.

13

The ninth section enacts that when the witnesses are dead, or their residence unknown, or when they reside out of the State, the instrument may be proved by evidence of the handwriting of the 'grantor OR person who executed the same, and of one of the subscribing witnesses; and this proof is to be made by 'two or more disinterested witnesses."

14

This act was to take effect July, 1846, and all prior laws in conflict with it are repealed.

15

In A.D. 1858, commenting on the fourth section, above cited, as descriptive of the instruments to be recorded, the Supreme Court of Texas, in Henderson v. Pilgrim,2 say:

16

'It is the obvious policy to require all instruments concerning land to be recorded in the proper county.'

17

And the court, therefore, held that an assignment of a mortgage was within the provision of the act.

18

In the same year it was held that a covenant for title, though a mere executory contract, was within the law.3

19

So far as to the recording acts.

20

Another statute, that of May 13th, 1846,4 having for its frequent effect to change the burden of proof as existing at common law, is as follows:

21

'Every instrument in writing (properly recorded), shall be admitted as evidence without the necessity of proving its execution, provided that the party who wishes to give it in evidence shall file the same among the papers of the suit three days before the trial, and give notice to the opposite party, of such filing, and unless such opposite party, or some other person for him, shall within one day after such notice, file an affidavit stating that he believes such instrument to be forged.'

22

With the different statutes about recording instruments of title, and this last-quoted act as to the effect, in the matter of evidence, of filing among the papers of the suit of any instrument 'properly recorded,' Lapsley, on the 31st of March, 1863, brought trespass to try title against N. A. McPhaul and eight other persons, in the court below, to recover possession of eleven leagues of land described.

23

The plaintiff claimed under a power of attorney, said to have been executed by Thomas Vega, Jos e Maria Aguerre, and Rafael Aguerre, to Samuel May Williams, dated the 5th of May, 1832.

24

McPhaul answered, pleading an outstanding title to one league in a certain Fleming, but junior in date to the title of the plaintiff, which he mentioned had been perfected, as he alleged, by a title from Thomas de la Vega.

25

Appended to McPhaul's answer was the statement of de la Vega that he had sold this league, in 1860, to McPhaul, and that this was within the eleven leagues claimed by Lapsley, and he asked to be made a party to defend his title warranty, and prayed for a decree confirming the title to said defendants.

26

This application was never allowed by the court.

27

Subsequently to this, on the 16th January, 1872, Lapsley filed among the papers of the cause (giving notice to the other side, on the same 16th, that he had done so), a paper thus described:

28

'A testimonio of a power of attorney from Thomas Vega, Jos e Maria Aguerre, and Rafael Aguerre, to Samuel May Williams, dated the 5th of May, 1832, the said testimonio being executed by Juan Gonzales, with his proper attesting witnesses, and duly recorded in the counties of Falls and McLennan, after being duly proved.'

29

The reader not familiar with the Spanish law, prevalent until 1836, in what is now the State of Texas—a region till that date a portion of Mexico, itself formerly a colony of Spain—may not know exactly what a testimonio is. For any such it may be stated that in Spain and her colonies, deeds, contracts, and powers of attorney are executed before a regidor, a public officer, a sort of notary or alderman, exercising quasi judicial power. The parties appear before him accompanied by a certain number of their neighbors as 'instrumental witnesses.' The parties state the matters between them. The officer makes a minute of the terms stated. He then enters in a book the formal agreement. This is the protocol. He then furnishes to the party in interest a similar document. This is a testimonio.

30

What common-law lawyers would call the contract itself, but what lawyers of Spain and her colonies call the protocol of the contract, remains with the notary apud acta; like the original of a will in a surrogate's office. The testimonio is delivered to the parties, as the surrogate gives letters testamentary preceded by a transcript of the will.

31

The so-called testimonio, filed in this case, was in Spanish, and when translated into English ran thus:

32

'Second seal two reals for the two years 1832 and 1833.

33

'In the city of Leona Vicaria, on the 5th day of the month of May, in the year 1832, before me, citizen Juan Gonzales, regidor (alderman) of the honorable council of this city, and acting alcadi (mayor) therein, and in its jurisdiction, during the indisposition of the proper officer who officiates in the treasurer's office, no secretary being allowed him according to the terms of the law, and in the presence of the witnesses who will be named at the close hereof, personally appeared citizens Dr. Jos e Maria Aguerre, Thomas Vega, and Rafael Aguerre, residents of this city, well known to me, and declared that, in the most complete form which may be required by law, they grant, give over, and concede unto Mr. Samuel May Williams, a resident of the city of Austin, full power, as much as may be required and as may be necessary in law, especially, in order that in the names of these appearers, and in representation of their own persons, rights, and actions, so far as is allowed by the colonization law of the 24th March, 1825, he may be able to proceed, and may proceed according to his judgment, to the sales of the tracts of land which, on the 14th June, 1830, the supreme governor of this State granted to them, the appearers.'

34

The document having given the power of sale, concluded thus:

35

'Thus have they granted and signed it in presence of these witnesses, citizens Antonio Espinosa, Rafael de Leon, and Francisco de la Fuente, Gonzales, residents of this city.

36

THOMAS VEGA,

37

JOSE MA. AGUERRE,

38

RAFAEL AGUERRE.

39

'I attest:

40

JUAN GONZALES.

41

'Copy from the original, with which it agrees, the day of its execution; given on two 'useful' pages of paper, of the second stamp, conformable to law. All of which I, the undersigned judge, officiating with those assiting me according to law, hereby attest.

42

'JUAN GONZALES.

43

'Witnesses:

44

JOSE NAZO ORTIZ,

45

J. M. MORAL.'

46

Annexed to the testimonio were certain affidavits, on which it was recorded, in McLennan County, as shown by the certificate of the proper officer, on 7th September, 1856 (twenty years after its date), and again in same county, on 22d September, 1858.

47

In Falls County, 6th October, 1859.

48

In Williamson County, 15th October, 1859.

49

Among the affidavits on the testimonio was one by J. N. Seguin, made on 3d September, 1856, proving the handwriting of Juan Gonzales, by whom the testimonio or copy was made, and of his assisting witnesses, Moral and Ortiz, and that these parties, if living, were residents of Saltillo, in the State of Coahuila.

50

There was also an affidavit from Gonzales himself, made on the 13th July, 1857, testifying that the testimonio was executed by him, at the personal request of Jos e Maria Aguerre, Rafael Aguerre, and Thomas Vega, and in their presence; that the signature 'Juan Gonzales' is his genuine signature, officially signed as regidor of the corporation of Saltillo, and second alcalde in turn, in the year 1832, as expressed therein; and that the signatures of Ortiz and Moral, who signed as assisting witnesses, in his presence, were their genuine signatures; that Thomas de la Vega executed a certain other power of attorney before him to said S. M. Williams, on 28th April, 1832, and that the said Thomas Vega, who was a party to this testimonio, was one and the same person; that he knew of no other Thomas Vega, or Thomas de la Vega, in the city of Saltillo, or any other part of Mexico.

51

Through a deed made on this power of attorney, and other conveyances not disputed, the plaintiff made a title apparently regular, if the power was genuine.

52

Previous to the trial, which came on, February 5th, 1872, all the defendants except McPhaul were, with the plaintiff's consent, dismissed.

53

On the 3d of February, while the case was a trying, a certain Simon Mussina, representing himself to be 'attorney of Thomas de la Vega,' filed an affidavit that the testimonio was, 'as he verily believed, a forged instrument.'

54

The plaintiff moved to strike this affidavit from the files as made out of season; the statute requiring it should be made within one day after notice of filing the document sought to be used, and the affidavit not having been made until many days afterwards.

55

This motion the court granted.

56

The testimonio, therefore, stood without any affidavit against its genuineness, and IF 'properly recorded,' was entitled, under the already quoted act of May 13th, 1846, to be used 'without the necessity of proving its execution.' But the question whether it was 'properly recorded' remained.

57

On the trial the plaintiff, assuming, of course, that it was, offered it in evidence without proof of its execution; and the court, under the defendant's exception, received it. Being thus in evidence, the defendant offered one T. J. Walker, to show that it was a forgery. The bill of exceptions said:

58

'Upon the trial, &c., the defendant introduced in evidence a witness, T. J. Walker, and offered to show the jury that in the year 1868 he went from Austin, Texas, to the city of Saltillo, Mexico, formerly called Leona Vicario, in Coahuila, and that he carefully examined the book of protocols in the office of the secretary of the ayuntamiento of the said Saltillo, and that he found in the book of protocols for the years 1832, 1833, an original protocol or matriz of a power of attorney in the Spanish language, of date May 5th, 1832, from Jos e Maria Aguerre to Samuel May Williams, giving said Williams the power to sell the land which the government had granted to Thomas de la Vega and Rafael de Aguerre and Jos e Maria de Auerre, to wit, eleven leagues each; that said protocol or original has not to it the signature or pretence of the signature of any one or person except Jos e Maria de Aguerre and Juan Gonzales; that the name of neither Rafael de Aguerre or Thomas de la Vega, nor any witnesses, is found on said protocol or original he examined; that in said protocol book aforesaid, and of date April 28th, 1832, he found an original protocol of a power of attorney, signed by Jos e Maria de Aguirre or Aguerre, and Thomas de la Vega and Juan Gonzales, and with assisting witnesses Ortiz and Moral; that this power is to Samuel M. Williams; and that in said book of protocols, from the power of attorney of the 27th of April, 1832, to the power of the 5th day of May, 1832, inclusive, there were seven leaves and no visible evidence of any mutilation of the book; that there are no protocols of any power of attorney from either Maria de Aguirre or Aguerre, or Thomas de la Vega, to any one in said seven leaves, except the two named above; that he has in his hands, now in court, photographic copies of the said seven leaves of the said book, which show exactly what he states.'

59

To the admissibility of these facts in evidence the plaintiff objected, and the court sustained the objection, to which ruling the defendant excepted.

60

The plaintiff derived title, under the power already mentioned to Samuel May Williams, from a person who in some parts of his title-papers was styled Thomas Vega and sometimes Thomas de la Vega.

61

Thus it appeared——

62

That when Williams, as attorney, applied in 1833, for a title of personal possession, he described himself as 'attorney of Jos e Maria Aguerre, Rafael Aguerre, and Thomas Vega, inhabitants of the town of Leona Vicaria;'

63

That when Lesassier, alcalde of the town, granted the title, he described the eleven leagues as 'denounced by the attorney of Thomas de la Vega;'

64

That when the surveyor made his return, he said he had executed it 'by virtue of your decree for the attorney of Thomas de la Vega;'

65

That in the petition of Jos e Maria Aguerre he declared it made 'on his own behalf, and also in the name of Thomas Vega and Rafael Aguerre;'

66

That when, in conformity to this petition, Lesassier made his decree, he described it as made in favor of 'Jos e Maria Aguerre, Rafael Aguerre, and Thomas de la Vega.'

67

The court charged that the title set up by the defendant in Fleming could not defeat the plaintiffs, because it was junior in date to it, and that they would find for the plaintiff unless they believed from the evidence that the testimonio was a forgery; that the registration was only prim a facie evidence of its genuineness, and that the fact that the court had admitted the testimonio in evidence did not preclude the defendant from showing that it was forged, and that if the jury believed that Thomas de la Vega never did sign it they would reject it; that there was no evidence of forgery except the difference in the name Thomas Vega and Thomas de la Vega; that the testimonio, 'the original and copy of which' was before them, was evidence for their consideration; that it was not necessary that the signature of Thomas de la Vega should be in his own proper handwriting on the testimonio before the jury, and that if Thomas de la Vega did sign the original of it in the office at Saltillo then the testimonio given in evidence, with a proof of a conveyance by Williams, under it, would divest Vega of his lands.

68

The defendant asked the court to charge——

69

1. That the jury must disregard the paper purporting to be a testimonio;

70

2. That unless they believed that the original grantee of the land and the person making the instrument (if it ever was made) purporting to be a power of attorney, were one and the same person, they must disregard it;

71

3. That unless they believed as last abovementioned they must find for the defendant;

72

The court refused the charge first above requested, and gave the other two, with the qualification that if the jury believed, from either the documentary or oral testimony, that the original grantee was known indifferently by the name of Thomas Vega and Thomas de la Vega, the presumption was that he was the person who signed the power; and that the jury would so consider, unless satisfied otherwise from other evidence.

73

Verdict and judgment having gone for the plaintiff, the defendant brought the case here; the writ of error being in the name of the whole nine original defendants; all of whom, as already said, except McPhaul, had been with the plaintiff's assent dismissed from the case before trial.

74

'An act to further the administration of justice,' passed June 1, 1872,5 enacts,

75

'That the Supreme Court may, at any time, in its discretion and upon such terms as it may deem just, and where the defect has not injured and the amendment will not prejudice the defendant in error, allow an amendment of a writ of error when there is a mistake in the teste . . . and in all other particulars of form.'

76

In the assignments of error, it was alleged for error that the court erred, among other ways——

77

1. In admitting the testimonio in evidence.

78

2. In excluding the testimony of Walker.

79

3. In charging that the admission in evidence of the testimonio was prim a facie evidence of its genuineness;And further, that there was before them no evidence that the testimonio was not genuine, except the evidence of difference of name;

80

And in improperly withdrawing the mind of the jury from considering the want of genuineness of the testimonio from a failure of the plaintiff to show the existence of or the genuineness of any protocol at Saltillo.

81

Mr. T. J. Durant, for the plaintiff in error:

82

1. The court erred in receiving the testimonio in evidence, under the act of May 13th, 1846. That act, by which written instruments on being filed in a cause prove themselves, applies only to those instruments which are 'properly recorded.' Now, a testimonio is but a copy; an ex parte copy, made without any opportunity to cross-examine the witnesses as to its authenticity. In the present case the copy purports to be taken from the original on the day of its date (5th May, 1832). It was afterwards recorded in different counties; but recorded when afterwards? Not until twenty-four, twenty-six, and twenty-seven years afterwards.

83

If a registration of a document were provided for by previous laws (and unless it was so plainly the testimonio did not by filing prove itself), no document recorded until so very far from the proper time was 'properly recorded.'

84

Further: the law of Texas providing for the registration of powers of attorney6 says they 'shall be proved or acknowledged according to law.' No such proof or acknowledgment could be made as to the testimonio, for it was without any actual signature of De la Vega to it. If Thomas Vega was the name, that name was on the copy; but the whole paper, name and all, purports to be a copy written wholly by Juan Gonzales himself, as regidor, second alcalde, and acting in the absence of the notary public, and does not purport to have been written or signed by De la Vega.

85

But even if the document were one the registration of which was contemplated by the statute, the affidavits are short of the requisitions, and the document is left as an office-copy of a power of attorney without the slightest effect as proof, farther than that there was, in form, such a power. Indeed, Gonzales says (more than twenty-five years after the alleged power of attorney was given) that he executed the copy at the personal request of, &c., &c., and 'that the signatures of . . . and . . . were signed as assisting witnesses in his presence, and are their true and genuine signatures,' meaning and certifying that the witnesses are to the fidelity of the copy, and not to the correctness or genuineness of the original.

86

Neither of these assisting witnesses is produced. The case is equivalent to that of an office clerk in a common-law State copying a power of attorney, swearing to the execution of the original, having the copy recorded, and hoping by this means to make the copy supply the place of the original, under the special legislation of the several States.

87

But these assisting witnesses were not the witnesses to the signature of Vega or De la Vega to the original power of attorney. Three citizens and neighbors are declared present at the execution and delivering. Their names are given in full: Antonio Espinoza, Rafael de Leon, and Francisco de la Fuente. Neither is produced, nor is his absence accounted for.

88

Were these witnesses bound under Spanish law to sign with the principals and notary? Doubtless. But they do not sign. And no one of them was produced to prove the execution and acknowledgment.

89

But if the testimonio, in virtue of being filed, proved itself, what was it? Nothing, even as pretended, but a copy of an original confessedly existing and capable of being produced.

90

The testimonio did not profess to be an original. The filing may hae dispensed with proof of its being a copy. But if it had not been filed, and had been offered in evidence as a copy, and been conceded by us to be a true copy, how did that help the plaintiff? In Spain and her colonies indeed, these testimonios or copies, make prim a facie full proof of all they contain, when offered in evidence on a judicial contestation. But this institution of the notariat forms no part of the laws of Texas, where the common-law rules of evidence prevail, except so far as statutes may alter them.

91

The filing, in short, may have dispensed with certain formal proof, but it does not allow you to prove by a secondary sort of evidence that which you can prove by an original in your control.

92

2. The court erred in rejecting the testimony of Walker.

93

If a copy became, by filing, under the act of May 12th, 1846, the equivalent of an original of which it purported to be a copy, or even if the rule of the Spanish law prevailed, and this testimonio became as a mere copy evidence, it would not even under that law become more than prim a facie evidence; and the court erred in rejecting the evidence of Walker to prove that there was no such original as that of which the testimonio purported to be a copy; in other words, that the testimonio was fraudulently made. Even under Spanish law that could be proved. Now, certainly the testimony of Walker, with his photograph fac similes in his hand, did tend to prove this. In our opinion such testimony tended strongly to prove it. But certainly the testimony tended somewhat to do so, and if it tended at all—tended in the least—it ought to have been received. It will be said that the originals could have been produced, and that such original was better than the photograph. The argument is double-edged. It cuts two ways; and more sharply backwards than forwards. If the argument has any force, why was not the original produced to support the plaintiff's claim? To prove what was in the protocol the photographs were infinitely better than the testimonio.

94

3. The court erred in charging. It charged that there was no evidence that the testimonio was not genuine except the evidence of difference of name. If there was any law authorizing the record (and, as we have already said, unless there was, the testimonio was wrongly admitted without being proved), some presumption of fraud (in our view a considerable one) arose, from the non-recording of the paper for nearly thirty years after its date.

95

The principles of law, as to the testimonio, were entirely disregarded in the instructions. The court says:

96

'The testimonio, the original and copy of which is before you, of May 5th, 1832, is evidence for your consideration.'

97

Whilst the record shows that only the testimonio or officecopy of the power of attorney was before the jury. It further said that 'it was not necessary that the signature of the grantee, Thomas de la Vega, in his own proper handwriting, should be on the testimonio before the jury, and also that if Thomas de la Vega did sign the original of the testimonio and the testimonio before the jury in the office at Saltillo, then the testimonio given in evidence, with proof of a conveyance made by Williams, the attorney, by virtue of it, would divest La Vega of his lands claimed.'

98

This withdrew the minds of the jurors from the consideration of the want of genuineness of the testimonio, arising from a failure of plaintiffs to show the existence of or the genuineness of any protocol in Saltillo.7

99

In Spencer v. Lapsley,8 this same testimonio was, indeed, received by this court; but then the court relied for its judgment upon the fact that 'its authenticity had never been questioned by La Vega, so far as is shown in the record.'

Mr. P. Phillips, contra:

100

I. The testimonio was 'properly recorded,' and, therefore, having been filed, with notice of the filing, was made evidence by the act of May 13th, 1846.

101

1. A testimonio is what is known in Texas, deriving its terms from the Spanish law, as a 'second original;' and not, as is assumed by the opposing counsel, a copy simply. This was settled by this court in Mitchel v. The United States so far back as 9th Peters.9 It is there said:

102

'The original is a record, and preserved in the office, and cannot be taken out; a testimonio or copy is delivered to the party, which is deemed to be and is certified as an original paper, having all the effect of one in all countries governed by the civil law.'

103

And in Herndon v. Casiano,10 the Supreme Court of Texas said the same thing:

104

'The testimonio, though denominated a second original, is still an original.'

105

As an original it was rightly recorded under the recording acts of Texas.

106

That the testimonio is an 'instrument in writing concerning land,' as described in the fourth section of the act of May 12th, 1846, is plain.

107

And that the acknowledgment by Gonzales was made by 'the person who executed the instrument.'

108

And that his deposition, together with that of Seguin, as to the genuineness of the handwriting of the assisting witnesses (who are residents of a foreign country), bring the case fully within the provisions of the seventh and ninth sections.

109

In Edwards v. James,11 the officer who executed the testimonio acknowledged the same, and on this it was recorded. The Supreme Court of Texas held this sufficient under the thirty-fifth section of the act of 1836. It said:

110

'The officer who executed the protocol, and issued the copy or second original, appeared before the county register and acknowledged his signature to the certificate authenticating the testimonio, and this was sufficient, under the thirty-fifth section of the act of 1836, to have authorized its record.'

111

If we compare these words of the act of 1836 with those of 1846, we find them to be substantially the same.

112

In the first, evidence is to be produced as to the 'signature of the signer, unless he, himself, shall acknowledge the same.'

113

By the second, the acknowledgment is to be made by the 'grantor, or person who executed the instrument.'

114

The signer of the instrument, and the person who executes it, are the same. So that the decision made under the act of 1836 applies in full force to a like acknowledgment made under that of 1846.

In Paschal v. Perez,12 the court say:

115

'If the instrument be legal and authentic, without subscribing witnesses, it would require language too plain to be mistaken to exclude it from record for the want of proof by such witnesses, the signature of the signer being substantiated by satisfactory proof.'

116

In this case we not only have this acknowledgment of the signer, but the evidence of two witnesses to his signature, and the genuineness of the signature of the assisting witnesses, non-residents.

117

2. The paper as a 'copy' of an 'original remaining in the public archives, executed in conformity to the laws existing when it was made, duly certified by the proper officer,' was properly recorded under the second section of the act of 19th January, 1839.

118

In Guilbeau v. May,13 decided in the Supreme Court of Texas A.D. 1855, the court says:

119

'It is believed this act has a direct reference to this description of titles. It is well known that in the titles to land executed prior to our separation from Mexico, the original remained as an archive, and a testimonio was given to the interested party as an evidence of title. . . . The act leaves no doubt that this kind of evidence ought to be recorded.'

120

The recording acts, therefore, applied to the paper whether it was an original or a copy; and as either it was 'properly recorded. What if it was not recorded for many years after its execution? Papers do not lose their right to be recorded by delay. If proper papers for record at one time, they are of right recorded at any time; and when recorded of right are properly recorded.'14

121

Having been properly recorded the document was made evidence by the act of May 3d, 1846.

122

II. The testimony of Walker was rightly excluded. Its purpose was to discredit a testimonio making a title to land, by showing, forty years after the execution of the document, a discrepancy between the testimonio and the matrix or protocol.

123

If evidence to do this is admissible at all, it ought to come from the best source. The officer in charge of the archives should have been examined, and the documents themselves, or authentic copies, should have been produced in court for inspection.

124

In this case what purported to be a photographic copy of the protocol was no proof at all, because not established by the testimony of any person who made it.

125

It is by no means admitted that if proper evidence of discrepancy had been produced, this would have invalidated the testimonio.

126

It is stated by Sala,15 that the paper which is always signed by the parties and witnesses is the first draft on common paper.

127

That it ought afterwards to be extended in the book of protocols, and should be again signed by them.

128

That the first paper, when free from blots, &c., is better evidence than the protocol, because it is always signed by the parties, whereas the protocol is not always signed by them, and because the former contains the rubric or seal of the officer, while the latter does not.

129

That the protocol has full faith for which it is intended; but in court so much faith is not awarded to it as to the testimonio, because it was not established for the purpose, and because it wants the rubric or seal which authenticates it, and which every public instrument ought to have.

130

That the testimonio makes full proof except in cases where the instrumental witnesses dispute it.

131

By a law of Texas all the archives were required to be deposited in the General Land Office, whether in possession of an empressario, political chief, alcalde, commissary, or commissioner. The failure to do this was visited with a heavy penalty. Documents so deposited were to remain there, and certified copies were made evidence.

132

In Titus v. Kimbro,16 a testimonio was offered in evidence and held to be conclusive, and to be better evidence than a certified copy of an original title from the General Land Office.

133

III. The charge was right.

134

The judge was requested to charge, that unless the jury believed that the grantee and Thomas Vega were one and the same person, the instrument must be disregarded. The instruction was given, with the qualification, that if the jury believed that the grantee was known indifferently as Thomas Vega and Thomas de la Vega, then the presumption is that he was the same person, and they would so consider, unless satisfied that such was not the fact.

135

In view of the documentary evidence on which the two names were used indifferently, there can be no valid objection to this charge.

136

No instruction was asked for as to the effect of the lapse of time before the instrument was recorded. If such instruction had been asked, it would have been properly refused, as the registration, whenever made, is effective from its date.

137

We need not assert that the testimonio coming from our possession would have proved itself. We rest its admission in evidence without proof of execution, on the ground that the statute of the State made it evidence after it had been recorded, and when notice had been given that it was to be used in evidence on the trial.17

138

IV. The writ of error is sued out by McPhaul and all the other eight original defendants to correct a judgment rendered against them.

139

There is no judgment such as is described in the writ. The only judgment is against McPhaul alone. He alone petitioned for the writ. The writ must, therefore, be dismissed (if amendable in this particular) as to all others than McPhaul.

140

Mr. Justice SWAYNE delivered the opinion of the court.

141

The action was ejectment. Lapsley was the plaintiff. The plaintiffs in error were the original defendants. In the progress of the cause the plaintiff dismissed the action as to all of them except N. A. McPhaul, and judgment was rendered against him for their costs. He recovered against McPhaul, and this writ of error is prosecuted to reverse the judgment.

142

The writ should have been in the name of McPhaul alone as the plaintiff in error. But as the defect is clearly amendable under the third section of the act of June 1st, 1872, it is unimportant.

143

There are numerous assignments of error. Except those involving points which we deem material to be considered, we shall pass them by without remark.

144

The affidavit of Mussina was properly stricken from the files.

145

The law of Texas provides as follows: 'Every instrument in writing (properly recorded) shall be admitted as evidence without the necessity of proving its execution, provided that the party who wishes to give it in evidence shall file the same among the papers of the suit three days before the trial and give notice to the opposite party of such filing, and unless such opposite party, or some other person for him, shall within one day after such notice file an affidavit stating that he believes such instrument to be forged.'18

146

The affidavit was filed by Mussina as the attorney of De la Vega. It set forth that the instrument of writing purporting to be a testimonio or second original of a power of attorney from Thomas de la Vega, by the name of Thomas Vega, to Samuel M. Williams, dated May 5th, 1832, was, as affiant verily believed, a forgery. The testimonio was one of the plaintiff's files in the case for the purposes of evidence upon the trial. The object of the affidavit was to throw the burden of proof upon the plaintiff.

147

He had given the proper notice to the defendants on the 16th of January, 1872. The affidavit was filed, not within one day thereafter, as the statute required, but on the 5th of February following, while the trial was in progress. De la Vega, in whose behalf it was filed, was not a party to the record.

148

It is insisted that the testimonio was improperly admitted to record, and that it was not properly admitted in evidence. These objections present questions of local law.

The instrument is as follows:

149

It bears date on the 5th day of May, 1832, and sets forth that Thomas Vega, Rafael Aguerre, and Jose Ma. Aguerre, of the city of Leona Vicaria, appeared before Juan Gonzales, regidor of that city, and declared that they conceded to Samuel May Williams, a resident of the city of Austin, full power, 'in order that in the names of the appearers' he might proceed to sell the lands therein described. 'And to confirm all that may be granted and executed, the appearers bind themselves, their persons, and their property present and to come.' It concludes, 'Thus have they granted and signed it in presence of these witnesses, Antonio Espinosa, Rafael de Leon, and Francisco de la Fuentes, Gonzales, residents of this city.

150

'I attest: Juan Gonzales. Thomas Vega, Jose Ma. Aguerre, Rafael Aguerre.'

The following memorandum was affixed:

151

'Copy from the original, with which it agrees, the day of its execution; given on two 'useful' pages of paper, of the second stamp, conformable to law. All of which I, the undersigned judge, officiating with those assisting me according to law, hereby attest.

152

'JUAN GONZALES.

153

'Witness:

154

JOSE NAZO ORTIZ,

155

J. M. MORAL.' Affidavits are annexed upon which it was recorded, in McClennan County, September 7th, 1856, and again, September 22d, 1858; in Falls County, October 6th, 1859, and in Williamson County, October 15th, 1859. The affidavits were all sworn to in Texas. Among them are, one proving the handwriting of Gonzales and the attesting witnesses—Moral and Ortiz—and that, if living, they are residents of Saltillo, in the State of Coahuila; one by Gonzales, made July 13th, 1857, proving that the testimonio was executed by him at the personal request of the grantors named therein and in their presence, and that his signature thereto, and those of Moral and Ortiz, are all genuine; that Thomas de la Vega executed a certain other power of attorney before him to S. M. Williams on the 28th of April, 1832, and that 'the said Thomas de la Vega, who executed this testimonio, is one and the same person.'

156

The testimonio here in question being a copy from the protocol, or original instrument, made by the officer by whom the protocol was executed, was, in the eye of the Spanish law and of the law of Texas, 'a second original,' and of equal validity and effect with the prior one.19

157

That Gonzales had authority adequate to the function he performed, and that the testimonio was valid, was held by this court in Spencer v. Lapsley.20

158

In relation to the recording of the instrument, our attention has been called to the following statutes of Texas: the act of the 20th of December, 1836, sections thirty-five and forty; the act of May 10th, 1838; the act of January 19th, 1839; and the act of May 12th, 1846, sections four, five, seven, eight, and nine. A careful examination of these statutes has satisfied us that the registration was authorized by law. If there could be any doubt upon the subject it is removed by the Texas adjudications21 upon the subject, referred to in the argument of the learned counsel for the defendant in error. A certified copy from the office where the testimonio was recorded would, therefore, have been competent evidence. The original, with the recorder's indorsement, would, as a consequence, also have been admissible. In such cases, it would be a solecism to receive the copy and reject the original.

159

In this case the plaintiff offered the testimonio in evidence, and it was properly received. It would have been admissible without recording. In Martin v. Parker,22 it was objected that an act of sale of real estate, not having been signed by the instrumental witnesses, was inadmissible without proof of its execution. The court replied: 'We do not think the objection well taken. In McKissick v. Colquhoun,23 Chief Justice Hemphill said: 'The signature of a judge or alcalde acting in place of a notary, authenticated by two assisting witnesses, has all the force and effect of the signature and seal, or rubric, of a notary."

160

The defendant offered to prove by T. I. Walker, a witness present, that in the year 1868 he went from Austin, Texas, to Saltillo, formerly Leona Vicaria, in Coahuila, Mexico, and there examined the books of protocols in the office of the secretary of the ayuntamiento; that he found in the book of protocols for the years 1832 and 1833, among others a protocol of a power of attorney, in the Spanish language, of the date of May 5th, 1832, from Jos e Maria Aguerre to Samuel M. Williams, giving Williams the power to sell the land granted by the government to Thomas la Vega and Rafael and Jos e Maria Aguerre, to wit, eleven leagues each; that said protocol had to it no signatures but those of Gonzales and Jos e Maria Aguerre, and that it had no signatures of witnesses; that in said protocol-book, and of the date of April 28th, 1832, he found an original protocol of a power of attorney, signed by Jos e Maria de Aguirre, or Aguerre, and Thomas de la Vega and Juan Gonzales, with attesting witnesses Ortiz and Moral; that this power was to Samuel M. Williams; and that in said book, from the power of attorney of the 28th of April, 1832, to the power of the 5th of May, 1832, inclusive, there were seven leaves, and no visible evidence of any mutilation of the book; that there are no protocols of any power of attorney from either Maria de Aguirre, or Aguerre, or Thomas de la Vega, to any one, in said seven leaves, except the two named above; and that the witness had in his hands then in court photographic copies of said seven leaves, showing exactly the facts above mentioned as to the protocol-book and the said two powers of attorney as of record therein.

161

The plaintiff objected to the admission of the evidence. The court sustained the objection and the defendant excepted.

162

It has been shown that the testimonio is 'a second original,' and of the same effect with the protocol.24 According to an eminent Spanish authority it is full proof, unless the instrumental witnesses contradict it.25 Here neither Vega, either of the Aguerres, Gonzales, Moral, nor Ortiz was produced; nor was their absence accounted for. The bill of exceptions states that the witness had the photographic copies in his hands in court—not that they were offered in evidence. But perhaps it is only fair to construe the bill of exceptions so as to give it that effect. Conceding this, the only testimony offered was that of Walker, and the two photographic copies. It does not appear to have been suggested that this was to be followed by any further testimony. The copies had been in the possession of Walker more than three years; yet it is not shown that the plaintiff had any notice of them until they were suddenly produced by the witness in the midst of the trial. It is also significant that the agent who went on the visit of exploration to Saltillo did not claim to have discovered anything whatever adverse to the testimonio, except the state of the protocol as it appeared of record. Nor did the defendant, enlightened as he must have been by Walker, invoke the testimony of the keeper of the archives, or of any other person residing in the locality where they were kept. The plaintiff's petition was filed in 1863. Walker's discovery was made in 1868. The trial was in 1872. There was time between the two periods last mentioned to procure ample testimony from Saltillo and elsewhere touching the fraud and forgery charged, if they were believed to exist. The defendant was silent. The record is a blank as to any such testimony given, offered, or suggested, except the isolated circumstances offered to be proved by Walker and the two photographic copies. These are pregnant facts. Copies of the photographs are not given in the bill of exceptions; nor are the contents of the power to Williams, of the 28th of April, given in whole or part. That is stated to have had upon it the names of Jos e Maria Aguerre and Thomas de la Vega as grantors, and of Gonzales with those of Moral and Ortiz as assisting witnesses. It is possible that the testimonio may, by the mistake of the copyist, have the date of the latter instead of the earlier instrument, or that if the fuller and better evidence, which the defendant was bound to give, had been produced, the apparent discrepancies between the two documents in question might have been explained in a manner consistent with the integrity of all concerned and the validity of the testimonio. It should at least have been shown by some one officially connected with the office, that the book seen by the witness was the book, and the only book there wherein the instrument could have been properly recorded, and that there was no such protocol anywhere in that book, or elsewhere in the office. It is also possible it was known in the office that the missing signatures had been removed by some dishonest hand.

163

The testimony proposed to be elicited from Walker fell far short of the requisite standard. A party is not permitted to give secondary evidence where it presupposes better evidence within his reach, which he fails to produce. In Renner v. Bank of Columbia,26 this court, speaking of such evidence, said: 'Every case must depend in a great measure upon its own circumstances. The rule of evidence must be so applied as to promote the ends of justice, and guard against fraud and imposition.'

164

It appears incidentally by the record that there has been a great amount of litigation, extending through a long period of time, touching the lands to which this testimonio relates. The protocol and testimonio bear date more than forty years ago.

165

The record does not show that during this long period either of the Aguerres ever questioned the validity of the latter, or that La Vega ever assailed it by his own sworn testimony.

166

Large and diversified interests must have grown up on the faith in its genuineness. In this case the attack upon the instrument is not made by either of the grantors, but vicariously by the defendant, who claimed under a distinct and hostile title which he wholly failed to establish.

167

Under all the circumstances, we think the testimony of Walker was properly excluded.

168

In our judgment the court was correct as to the instructions given and those refused, to which the exceptions touching that subject relate.

169

We direct, sua sponte, the writ of error to be amended by striking from it the names of all the plaintiffs except McPhaul; and the judgment of the Circuit Court is

170

AFFIRMED.

1

15 Texas, 414.

2

22 Texas, 476.

3

Secrest v. Jones, 21 Texas, 133.

4

Section 90. Referred to in Hanric v. Barton, 16 Wallace, 166.

5

17 Stat. at Large, 196, § 3.

6

Paschal's Annotated Digest, § 5005.

7

Clarke v. Courtney, 5 Peters, 319.

8

20 Howard, 273.

9

Page 732.

10

7 Texas, 332.

11

Ib. 377.

12

7 Texas, 348.

13

15 Id. 410.

14

Ib. 414.

15

4 Sala, 127, 130, 236.

16

8 Texas, 212.

17

Harvey v. Hill, 7 Id., 597.

18

Section 90, act 13th May, 1846, p. 387, referred to in Hanrick v. Barton, 16 Wallace, 166.

19

1 Partidas, 222; Owings v. Hull, 9 Peters, 625; Mitchel v. United States, Ib. 732; Smith v. Townsend, Dallam's Digest, 570; Herndon v. Casiano, 7 Texas, 332.

20

20 Howard, 274.

21

Guilbeau v. Mays, 15 Texas, 414; Henderson v. Pilgrim, 22 Id. 476; Secrest v. Jones, 21 Id. 133; Paschal v. Perez, 7 Id. 348; Fdwards v. James, Ib. 377.

22

26 Texas, 260.

23

18 Id. 151.

24

Mitchel v. United States, 9 Peters, 732; Herndon v. Casiano, 7 Texas, 332.

25

4 Sala, 127, 130, 136.

26

9 Wheaton, 581.