Mills v. Herndon

Citations

• 60 Tex. 353
• 1883 Tex. LEXIS 338

Syllabus

<p>1. Deed by foreign executor.—An executor acting under authority of a will probated in another state can perform no act as such in Texas until he has complied with the statute in filing and recording such will. Until then, his conveyance of real property of the estate, situate in Texas, cannot pass the title, nor can his subsequent compliance with the statute in filing and recording the will relate back and validate conveyances made without authority. But this rule does not apply when the executor is a devisee under the will; his .conveyance as executor would be validated by a subsequent filing and recording of the will.</p> <p>2. Same.— When there was nothing on the face of a deed made by one having an interest in land as heir at law and devisee to show that he was acting as executor under a will made in another state and not filed or recorded in Texas, except the fact that the words “executor of C. P. Green, deceased,” were appended following his signature, held, that the deed passed to and vested in the purchaser all the interest of the vendor, whether as heir at law or devisee under the will.</p> <p>3. Evidence — Lost deed.— When one in possession of land, claiming the same under a lost or destroyed deed, has for a long period of time exercised acts of ownership and control under it, strict proof will not be required to establish its former existence, contents and loss. Following Lewis v. Baird, 3 McLean, 56. It is otherwise when he has neither asserted ownership or control of the property for a long period of time, and seeks to set aside the apparent title vested by written conveyance in another. In such case, clear proof of the former existence and execution of his deed, and of its contents, must be made.</p> <p>4. Evidence.— See opinion for a question to a witness held to be leading, and suggesting the answer desired. But objections to such a question, when the witness testifies by deposition, go to the manner and form of taking, and must be made previous t