Storey v. Flanagan

Citations

• 57 Tex. 649
• 1882 Tex. LEXIS 193

Syllabus

<p>I. Presumption of power — Ancient instrument.— A notarial act dated in October, 1835, was offered in evidence in 1881, which on its face purported to be the deed for a league of land of one Frost Thorn, as substitute attorney for Franklin and E. M. Fuller, who, it recited, were the attorneys of Bussell Williamson, the original grantee. No power from Williamson to the Fullers, or from them to Thorn, was produced, but the deed recited that Frost Thorn appeared and that he was known to the judge of the first instance before whom the instrument was executed. It described him as “ substitute attorney of citizen Bussell Williamson, . . . as appears from a judicial power executed this day by citizens Franklin and E. M. Fuller, attorneys of said Bussell Williamson, which power exists in this my court. ” The original survey and grant both bore date the day before the date of the deed offered in evidence, and the vendee therein made and reported the original survey. In a suit between a defendant who had been in possession since 1860 holding under that deed, and one claiming under a deed direct from Russell Williamson, dated in August, 1838, and recorded in 1841, but which was attacked (with conflicting evidence) as a forged instrument, held —</p> <p>(1) The recitations of the deed as to the original power, and of authority under it to substitute, and that a substitute attorney was made, were, in connection with the facts as recited above, sufficient to sustain a verdict finding authority in Thorn to make the deed.</p> <p>2. Evidence.— A certified copy of the notarial act of a judge of the first instance, made in December, 1835, which was certified to by the county clerk as being a copy of the original which was on file in his office, and which was an archive thereof, is admissible in evidence without proof of the execution of the original.</p> <p>3. Practice — Forgery—Statute construed.— Under art. 2257, R. S., a party to a suit may, by filing three days before the trial t