Holmes v. Coryell

Citations

• 58 Tex. 680
• 1883 Tex. LEXIS 85

Syllabus

<p>1. Ancient instrument — Certified copy — Evidence.— The certified copy of a recorded instrument purporting to be a deed, bearing date in 1843, and recorded the day after its date, on proof of its execution by the only subscribing witness thereto, was attacked by affidavit of forgery and not otherwise objected to in 1881. An affidavit showing diligent search for the original deed, and its loss, as a reason for its non-production was filed. It was shown that the grantor, grantee and subscribing witness were dead. Held,</p> <p>(1) The Revised Statutes, art. 2257, admitting in evidence instruments of writing without proof of their execution, on conditions specified, was simply designed to relieve a party from making statutory proof; and it imposes no greater burden on him who offers an instrument against which an affidavit of forgery has been filed, than the rules of evidence at common law required.</p> <p>(2) An affidavit of forgery being filed, the party is simply remitted to his common law method of proof.</p> <p>(3) The record made in 1843 evidenced with even more certainty than would the original deed, that it then had an existence, and was more than thirty years old.</p> <p>(4) The reason for the rule requiring that an ancient' instrument shall, to be admitted in evidence, come from a proper custody, is mainly founded on the idea that such custody affords evidence of delivery to him who claims under it. The registration of a lost deed also raises the presumption of its delivery.</p> <p>(5) The certified copy of a deed thus registered, with strong corroborating facts to show the genuineness of the original,1 was, after the lapse of thirty years from its date and registration, properly admitted in evidence. The deed, if m existence, would prove itself, and the statute, under circumstances specified by it, provides that “ a certified copy of the record of any such instrument shall be admitted in like manner as the original could be.”</p> <p>(6) The charge of the c