The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-04-19
DECISIONS OF THE HIGH COURT
OCTOBER TERM, 1859.
(EuroaruD u1rlussLr POE Tu HASTEN ClAnIOul
Lock, Brummette & Lock
VS..
Joseph NJ. Jane, ct al.

Joseph NJ. Jane, ct al.
This bill was filed by the appellants
claiming title in virtue of deed of assign
ment purporting to be executed by Reu-
ben Williams, one of the heirs and 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 a power
of attorney purporting to be made to
them by 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 and 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
tbeexecutiOn Embellishments 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 competent
officer in the State of Texas, as appears by
the certificates of such officer attached TO
or written upon them, which certificates
are proved to be genuine. These certif-
Gates of acknowledgment would have en-
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
ins1 on, in behalf of the appellants, on
the t,hrity of Art. 228, Revised Code
SIG. whicLl aes athat asseapies Of the
record .ofaauy deed, bona Or OtHsS. ~
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
acknowledged or proved, according to the
laws of the State or Territory where exc
cuted, so as to be entitled 70 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, 30 as to be en-
titled to be recorded there, shall be
evidence here without further proof of its
execution, whether recorded there or not.
But we do not think that q 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 such deeds
shall be produced, to-wit, where the
execution is denied on oath and in such
case, requiring that the original shall be
produced. 1t 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-tha
is, the original recorded deed previousl,
spoken of-when acknowledged or proved
&C., 80 as to be entitled to be recorded
where executed, shall be evidence.
does not allow every original deed whicl
is acknowledged or proved and recorde'
to be read in evidence, without furthe
proof ofpexecution for it may be az
knowledged or proved according to tn
laws of the State, and yet not be such q
instrument as is entitled or authorized (
he recorded by the laws of the State
But it must be an original Of a recorde
deed, which is acknowledged or prove
! according TO the laws of the State, 90
to be entitled TO be recorded there.
The object of statutes authorizing
deed to be acknowledged or proved
not to establish the instrument as the dee
, Of the party for all purposes, but to emf
Z tie it to be recorded. If that object
carried out by having it recorded, Il
3 deed is thereby so solemnized as to NAL
: the recorded original evidence, withol
further proof of execution, upon an issl
5 of non est fdeti8l. But If not recorded,
= is not clothed with that solemnity, Il
; purpose of the acknowledgment n
, having been contaminated and it stan
as a matter IN pals and must be proved 8
i cording TO the general rules of evidence
. Thus reviewing the question, we thin
y that the certificates of acknowledging
l. upon the instruments in question, we
l. not sufficient evidence of their executi,
b upon the issue made by the pleadings
. this case.
n The next question is, whether the G
10 ecution Of these instruments is suficiel
ly proved by other evidence shown in t
st record.
le There are no subscribing witnesses
o. them, and there is no proof Of the sign
L. ture Of Reuben Williams, and no sufficie
II proof of the fact Of his signing and del
in ering the instruments. The testimony
h the officer who purports to have tax
le the Acknowledgements, is not positive
De to the fact of execution, showing that
has no recollection of the fact OF exc,
N ton and acknowledgment, and that
o infers that the execution was duly
in knowledged by the grantor from the m,
n. fact that his witness signature 10
d. acknowledgment is genuine. These q
Y. tificates do not state that he knew R
Ie, ben Williams. the grantor, and althou
?. the matter OF acknowledgment was Of
cent occurrence, he had no recollection
of the facts attending il. He does not e,
eI, state that he knew Reuben Williams,
All only that he saw him once, and that !
ed about the 18th October, 1854, the Ii
when the certificates bear date. Il
pears 10 be strange that no proof was
duced Of the signature Of Reuben Y
liams. . matter which must be presuu
to be readily capable Of proof, Il the
m. nature was genuine. The only testim'