The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-04-19
OF THE HIGH COURT.
OCTOBER TERN. 1859.
[EzPoE4ED HxFEHssII PoE THn EAsrERx CLARION ]
Lock, Brummette & Lock !
VS.. ,
Josenh NJ. Jane. ct al.
953S

This bill was filed by the appellants
claiming title in virtue of a deed of assign
ment purporting to be executed by Reu-
ben Williams, one of the heirs an dis
tributes of David Williams, deceased,
conveying to the appellants all his inter
est in the estate, real and personal, of
David Williams, and in virtue of power
of attorney purpcrting to be made to
them bv said distributes and seeking to
recover the interest so conveyed to the
appellants. from the representatives of the
estate in this State, the deed of assign
ment aud power Of attorney purPorting TO
have been executed in the State of Texas,
where Reuben Williams had his domicile
and died.
The defendants in their answer, denied
the execution ofthe instruments by Reuben
Williams under oath and as evidence Of
their due execution. the appellants rely,
in the first place, upon the fact they were
duly acknowledged before a competent
officer in the State of Texas as appears by
the certificates of such officer attached 10
or written upon them, which certificates
are proved to be genuine. These certif-
Gates of acknowledgment would have en-
titled the instruments to record according
TO the laws of Texas, but the instruments
were not placed upon record there. And
the first question which arises is, whether
the original instruments so acknowledged,
but not recorded, are admissible in evil
dence when their execution is denied in
pleading under oath, without further
proof of their execution
The affirmative of this proposition is
insisted on, in behalf of the appellants, on
the authority of Art. DDS, Revised Code
record OF any deed. BOND OF ofnsf wlicsig.
required or permitted to be recorded by
the laws of this State or Of any other State
or Territory of the United States, &c,
shall when certified by the Clerk in whose
office the record is kept, under his seal of
office, be received in evidence in all Courts
of this State, without accounting for the
absence OF the original; but if the execu-
ton of such deed, bond or other writing
shall be disputed by the opposite party on
oath. the original shall be produced, or
its absence accounted for before such copy
shall be read. And such original when
ack knowledged or proved, according to the
laws of the State OF Territory where exc
cuted. so as to be entitled TO be recorded
there shall be evidence in this State
without further proof of its execution"
1t is insisted that, by the latter clause
of this Statute. an original deed, acknowl-
edged or proved according to the law of
the State where executed, so as to be en-
IiAAtu 10 Ob IGNOl0EA AnGAEg nAAdAA DE
evidence here without further proof of its
execution, whether recorded there or not.
But we do not think that careful ex-
animation of the Statute will justify this
construction.
The first clause Of it applies to copies Of
the record Of deeds. &c, recorded, accord
ing TO the laws of the State where execu-
ted, and makes them evidence generally,
dispensing with the production of the
originals. The second clause applies to
cases where the originals of euch deeds
-hall be produced, towit, where the
execution Is denied on oath and i'm such
case, requiring that the original shall be
produced. Ii then provides in what case
such originals shall be evidence, when the
execution is denied on oath, without
further proof of execution, tO-wit, when
such originals are acknowledged or proved
according to the laws Of the State where
executed, so as to be entitled to be re-
corded there. Throughout the second
clause, reference is made to the first clause
which speaks of recorded deeds alone.
On the denial of the execution of such
deed-that is, the recorded deed previous
ly mentioned-it requires that the origi-
nal shall be produced-that is, the origi-
nal Of such deed, such recorded deed
and it provides that such original-that
is, the original recorded deed previously
| spoken of-when acknowledged OF proved
&c, so as to be entitled to be recorded
where executed, shall be evidence. II
| does not allow every original deed which
/ is acknowledged or proved and recorded
! to be read in evidence, without further
/ proof of execution for it may be ac
| knOwledged OF proved according to the
/ laws Of the State, and yet not be such ar
/ instrument as i entitled or authorized tc
he recorded by the laws Of the State
/ But 10 must be an original Of recorded
| deed. which Is acknowledged or proved
| according 10 the laws of the state, 80 -
| to be entitled TO be recorded there
The object Of statutes authorizing q
| deed 70 be acknowledged or proved il
/ not to establish the instrument as the deed
/ Of the party for all purposes, but to entl
tie IL TO be recorded. II that object Il
carried out by having it recorded, the
deed i thereby 50 solemnized As to make
the recorded original evidence, withou
further proof Of execution, upon an Issue
of non est f1cfBHl. But If not recorded, i
Is not clothed with thai solemnity, th'
uurpose Of the acknowledgement no
having been contaminated and It stand
as a matter IN pais and must BE- proved &C
cording to the general rules Of evidence
Thus reviewing the question, we thiEl
that the certificates Of acknowledgment
mon the instruments in question, wer
not suficient evidence Of their execution
uDon the issue made by the pleadings II
this case
The next question is, whether the ez
acntion Of these instruments is sufficient
Iv proved by other evidence shown ID tn
record.
There are no subscribing witnesses t
them. and there is no proof of the sigma
ture Of Reuben Williams, and no suficien
proof Of the fact Of his signing and deliV
erina the instruments. The testimony q
the officer who purports 10 have take
. the acknowledgements is not positive q
70 the fact of execution. showing that b
mas no recollection Of the fact Of execu
ton and acknowledgement, and that b
iDfers that the execution was duly ~
knowledged By the graator from the mer
fact that his witness signature 70 tn
ACKNOWLEDGMENT Il genuine. These Gel
ti6cafes do not state that he knew Rel
ben Williams. the grantor. and althoug
the matter Of acknowledgement was of n
cent occurrence. he had 10 recollection
{ the facts attending It. He does not eve
state that he knew Reuben Williams, bI
only that be saw him once. and that WI
about the 18th October, 1854. the tin
when the certificates bear date. II a
pears 70 Be strange that no proof was a.
duced Of the signature Of Reuben WI
liams. q matter shich must be presume
10 be readily capable Of proof. if the 81
: nature was genuine. The only testimon
J tending u show that the deed was exec
0 ted BY Williams j. that Of Warrington
> bat that i not direct 70 the point OF q
4 ecurion bu, tends to show acts q r'oo
+ milton from which execution might
infarrad. This witness does not speak