The State of Texas has provided by her legislation, as has been done in other States, a system for the registry of deeds and conveyances affecting the title to real property; and in connection with it, has modified, in some particulars, the rule of the common law with respect to the proof of their execution, when produced in the course of legal proceedings. One of her statutes enacts that every such instrument, when duly acknowledged and recorded pursuant to laws in force at the time, shall be admitted in evidence without proof of its execution, if the party desiring its introduction file it among the papers of the suit three days before the commencement of the trial, and give notice of the filing to the opposite party, unless such opposite party, or some one for him, shall, within one day after the notice, file an affidavit that he believes the instrument to be forged. The same statute enacts that when a party shall file an affidavit of the loss of the recorded instrument, or his inability to procure the original, a certified copy of the record shall be admitted in like manner as the original.
This latter provision does not dispense with the proof which is exacted when the original instrument is filed, in case an affidavit alleging a belief of its forgery is made; it only allows the certified copy to take the place of the original, when that is lost or cannot be procured. It was not intended to give to the copy produced under such circumstances greater weight than to the original itself. To avail himself, therefore, of the statute, the party must, in all cases, file as therein prescribed, the original or the copy from the record, and give notice of the filing; and even then the statutory proof will be insufficient, if the affidavit alleging a belief of its forgery be made. Such affidavit being filed, the party relying upon the deed must make proof of its execution, with all its essential formalities, as required by the rule of the common law.
The court below held otherwise, and instructed the jury in substance, that the affidavit with respect to the deed under which the defendants claimed in this case, only laid the foundation upon which she might introduce evidence to sustain the charge, and to show that such deed was in fact a forgery, and refused an instruction requested, that under these circumstances it devolved upon the defendants to show the due execution of the instrument.
The ruling of the court in this particular was clearly erroneous. The plaintiff, contesting the validity of the deed, was at liberty to show that it was a forgery without a previous affidavit of his belief on the subject. The affidavit was only required to meet the notice under the statute, that the adverse party intended to rely upon the statutory proof.
No attempt was made to meet the requirements of the common law in the proof of the deed. The affidavits of its loss only negatived, upon information and belief, its possession by some of the defendants. Its possession by some of them was consistent with every averment made. The defendants relied alone upon the copy from the record, and the court erroneously held that such copy was sufficient.
We might rest our decision here, but it is proper to notice another ruling of the court below, to prevent its repetition on a second trial. The proof of the execution of the deed necessarily involved proof of its delivery. The evidence offered, so far as appears by the record, showed that the grantor never parted with its possession, except as may be inferred from the fact of its registry. And the grantee testified that he never knew of its existence until after the death of the grantor, among whose papers it was found; and that he never claimed any interest in the property. Yet the court instructed the jury that as there was no contest of creditors against the deed, the instruments was binding, whether delivered or not. In this instruction there was also clear error. The delivery of a deed is essential to the transfer of the title. It is the final act, without which all other formalities are ineffectual. To constitute such delivery the grantor must part with the possession of the deed, or the right to retain it. Its registry by him is entitled to great consideration upon this point, and might, perhaps, justify, in the absence of opposing evidence, a presumption of delivery. But here any such presumption is repelled by the attendant and subsequent circumstances. Here the registry was of course made without the assent of the grantee, as he had no knowledge of the existence of the deed, and the property it purported to convey always remained in the possession and under the control of the grantor. #fn-s-s [1]
The judgment of the District Court must be reversed, and the cause remanded for a new trial; and it is
SO ORDERED.
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