Hooper v. Hall

Citations

• 35 Tex. 82

Syllabus

<p>1. In trespass to try title, to entitle the plaintiff to recover, even against a naked possessor, he must show that he is the absolute owner of the land in controversy, not only as against the defendant, but as against all other persons.</p> <p>2. On the trial of an action of trespass to try title, the defendants offered in evidence duly certified copies of a power of attorney and of a deed, which were executed in 1835 before a judge of the first instance, with the formalities necessary to constitute them public or authentic acts. Plaintiff objected to the copies, because the originals were not accounted for; and also because the copies had not been filed in the cause three days prior to the trial, and notice thereof given him. Held, that the objections were properly overruled. The copies were made evidence by the ninety-first section of the Act of May 13, 1846 (Paschal’s Digest, Article 3717); and this court has heretofore settled that it is not necessary to file such copies previous to the trial. (Hubert v. Bartlett, 9 Texas, 102; and Andrews v. Marshall, 26 Texas, 212, cited by the court.)</p> <p>3. It was further objected, that there was no proof that the originals had been filed in the office of the judge of the first instance, prior to the first Monday in February, 1837, so as to authorize the admission of the copies by virtue of the act above cited. (Paschal’s Digest, Article 3717.) But field, that in the absence of proof to the contrary, it is to be presumed that the originals were so filed at the proper time ; and the certificate of the clerk who has the lawful custody of the originals, to the effect that they are archives of his office, is tantamount to original file marks showing them to have been so filed, inasmuch as the originals could not be archives unless they had been so filed at the proper time.</p> <p>4. In a county clerk’s authentication of a public instrument executed before a primary judge in 1835, he certified the copy to be a “ true copy