#### ALEX. SARTOR v. JASPER BOLINGER.

SUPREME COURT,

AUSTIN TERM, 1883.

*Deed*— Authentication *in Foreign Language*— Evidence.—When an instrument, written in any other language than our own, is sought to he introduced in evidence, it must be translated into English by a competent person having knowledge of both languages, and this translation or intei pretation is a burden cast upon the party offering the paper in evidence.

*Same.*— Our statutes prescribe the persons authorized to take foreign acknowledgements, and an authentication is void when taken by an officer not expressly so authorized.

*Same*— Common *Law acquirements.*— See opinion for proof of instrument held insufficient under the common law requirements.

Appeal from San Saba County.

*Townes <b Burleson, Bussell Howard,*and X. *(’. Grothaus,*for appellant.

*Pendexter S Wooten,*and *McGinnis cb Allison,*for appellee.

Opinion by

Willie, C. J.

This was an action of trespass to try title, commenced by appellant to recover of appellee 408 acres of land patented to Francis Herrrnan, assignee of Johannes Zipp, under whom appellant claimed. Bolinger, the appellee, p eaded general and special demurrers, not guilty, limitation of ten years, and suggested valuable improvements. The cause was submitted to the court without the intervention of a jury, and judgment rendered for Bolinger, and from this judgment an appeal is presented by plaintiff below, to this court.

The basis of the judg'ment of the district court was a failure on the part of Sartor to prove title in himself to the land in controversy. This failure was caused by th’e rejection of a deed purporting to have been made to him by one Dekan Herrman, and which was one of the muniments of Sartor’s title to the land. The objections sustained to this deed were ;

*2401. It was not properly proven or authenticated for record, and not duly recorded.

*2.*Because it was not proven up as at common law.

What is claimed to be the proof upon which the deed was admitted to record, if in any language at all, is certainly not in the English language. The court could not take judicial knowledge of the foreign words and characters at the bottom of the deed, and no proof to explain them was offered. When an instrument written in any other language thau our own is sought to be introduced in evidence, it must be translated into English by a competent person having knowledge of both languages. It is the duty of the party offering the paper in evidence, to have the interpretation made, and not of the judge before whom the case is on trial, to supply him with an English version of it, in order to enable him to get in his evidence. The original deed with the so-called certificate of acknowledgement is brought up with the transcript, but this court is as ignorant of the contents of the latter as was the court below, and cannot tell of course whether or not it complies with our registration statutes. But there is another objection taken below, which is fatal to it as a certificate of acknowledgement. It does not appear to have been taken before any officer authorized by our laws to take the acknowledgement of deeds for record. The name of one' “Konig” is signed to it, and his official title seems tó be, “Kauslei Director” of the city of Stuttgart in the Kingdom of Wirtemberg, Germany.

At the date of this transaction our statutes required that proof of such instruments should be taken before some public Minister, Charge d’Affaires, Consul, or Consular Agent of the United States, or Notary Public.

The title by which the officer is designated does not bring him under either of these heads. All of these officers except the last must be officers of the United States, which this one was not, as appears from the certificate of the American Consul, and there is no proof whatever that he was a Notary Public. It is true the consul’s certificate says that “Konig” was commissioned to do such acts, but we are not advised of any law that authorizes the consul to make such certificates; and if commissioned at all, it was not by the State of Texas, which alone could confer authority to take acknowledgements of deeds to land lying within its territory.

*241We see no error in refusing to receive the deed in evidence as a recorded instrument.

The next question is: Was the deed sufficiently proved as required by the common law to admit it in evidence ?

The proof was about this : Sartor, the appellant, stated that he knew Dekan Herrman, who purported to be the grantor in the deed, personally since 1868; that he never saw him write, but had received letters from him which he afterwards stated to be written by him, some being in regard to this very land. That the correspondence extended over about four years. That after this correspond dence, he saw Dekan Herrman and communicated personally with him about it. That they conversed upon the subject, matter of the letters, each basing his statements on the facts and matters communicated from one to the other, in said correspondence, and referring thereto. That he had these letters in possession, and that he had examined the signature to the deed in question, and found the same genuine; he also stated that he knew the Herrmans personally, and had, for twenty years.

On cross examination, the witness stated that he knew none of the Herrman family personally except Francis Herrman, who was a brother of Dekan.

The judge below held that this evidence, given by the appellant alone, as to the alleged grantor’s signature, was so conflicting and contradictory in different parts of it, that it failed to show that the plaintiff knew the genuine handwriting and signature of the grantor sufficiently to render him competent to testify thereto.^

The letters, which according to Sartor’s testimony, he had received from Dekan Herrman, and by comparison with which he concluded that Herrman’s signature to the deed was genuine, were attached to his answers to interrogatories, his evidence having been taken by deposition. It was proposed to introduce these letters in evidence in order that the court itself might compare the handwriting ' with that of the signature to the deed; but on objection the court excluded them, because they were not admitted to be the letters of the grantor, or proven to be such.

The rules of evidence allow a witness to testify as to the handwriting of another when he has seen letters purporting to be in such handwriting, and has afterwards personally communicated with the writer respecting them. Also, where the witness has acted upon *242them, the party having known and acquired in such acts founded upon their supposed genuineness, or where the supposed writer has so adopted them into the Ordinary business transactions of life as to induce a reasonable presumption of their being his own writing. 1 Greenleaf on Ev., Sec. 577. The writer just referred to, adds that “evidence of the identity of the party being of course added aliunde, if the fitness be not presumably acquainted with him.”

The witness in answer to the direct interrogations qualified himself to testify concerning the handwriting of his grantor, for lie swore that he had seen letters, purporting to be in such handwriting and had afterwards personally communicated with the writer concerning them. This is almost in the exact language of the law, as if the witness had it before him in making the answer. But his subsequent statement that he never knew any of the Herrman family except Francis, excluded the idea that he could have had any personal communication with Dekan on this subject or any other. We must take his testimony most strongly against himself, and conclude that he had no knowledge of the genuiueness of the letters through any personal statements made to him by their supposed author.

There was no proof that the witness had acted upon statements contained in these letters. In fact, we are not informed as to what is contained in them.

He says that some of them were in regard to this very land; but upon what matter in reference to the land they treated, the record does not disclose. If the correspondence was not as to a sale of the land, then there was absolutely no proof that Sartor acted upon the contents of any of them. And there is no evidence that the supposed writer in any other way induced a reasonable presumption that these letters were his own.

And lastly, then it is not shown that the party wh.o wrote the let-, ters, was the identical Herrman under whom Sartor claimed the land. The identity of the party, as we have seen, must always be proved, where the witness is not personally acquainted with him. Here the witness has admitted on cross examination that he did not personally know Dekan Herrmann, and taking his word for it, his identity should have been established by competent testimony, which was not done.

It may be added, also, that this witness had been guilty of other contradictions in the course of his testimony, and if the court, ex*243ercising the right of a jury on the trial, and passing upon his credibility, refused to believe him, we would hardly be justified in reversing on that account.

The reasons assigned for holding the facts stated by Sartor to be insufficient to qualify him as a judge of the handwriting of his grantor, are sufficient to sustain the action of the court in refusing to consider the letters attached to his depositions, and to compare their handwriting with the signature of Herrman to the deed. It was not shown that they were written by the Dekan Herrman, whose name was signed to appellant’s deed. This does away with all necessity for passing upon the question of whether or not in our State, handwriting can be proved in a civil cause by a comparison -made at the trial, of the instruments offered in evidence, with papers shown to be in the handwriting of the party whose signature is in question. In such cases it must be made to appear in a satisfactory manner, that, such papers are in the genuine handwriting of the party, or they are not admissable. This proof was not made in the present case, and the court did not err in ruling out the letters.

Lastly, as to the alleged acknowledgement of title made by Bolinger in the written instrument certified to by Cooke as notary public.

There can be no doubt of the right of a party to an action of trespass to try title to attack the genuineness of an instrument offered in evidence by the opposite party, without filing an affidavit of forgery, where the party offering it in evidence has not complied with article 2257 of the Revised Statutes. Here the paper attacked by defendant had never been recorded, nor had any notice of its filing been given, nor was it relied on in any of the pleadings of the appellant. The court, therefore, did not err in admitting testimony to show lhat it wes not the instrument which Bolinger was induced to believe he was signing. If upon hearing proof as to the circnmstances under which this writing was signed, the court came to the conclusion that Bolinger placed his signature under a mistake and misrepresentation as to what it contained; and from inability to read, he could not ascertain by inspection the contents of the paper, relied on Cooke to detail them to him, we cannot disturb its conclusions in that respect.

There was some evidence to serve as a basis for them, and we must acquiesce in them. But the instrument, if legally executed, did not have the effect of depriving him of the right to question ap*244pellant’s title in this suit. It was in the nature of an agreement to purchase Sartor’s title, or sell Bolinger’s improvements to him. It was in effect what Bolinger supposed it to be,' an agreement to buy in case Sartor could make a good title, or more properly an offer of compromise, by buying out the opposing title, or selling his own claim.

All the parts of the instrument taken together make this its proper construction, and it did not operate to estop Bolinger from requiring appellant to show a good title to sustain this suit. There is no error in the judgment, and it is affirmed.