Younge v. Guilbeau

Citations

• 70 U.S. 636
• 18 L. Ed. 262
• 3 Wall. 636
• 1865 U.S. LEXIS 744

Syllabus

<p>1. The statute of Texas, relating to the organization, &c., of its District Courts, which enacts that when a party shall file an affidavit of the loss of an instrument recorded under the statute, or of his inability to procure the original, a certified copy of the record shall be admitted in like manner as the original — does not dispense with the proof which is exacted when the original instrument is filed, in case an affidavit (which the statute also allows) 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: and the copy produced under such circumstances will have no greater weight than the original itself.</p> <p>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.</p> <p>2. To constitute delivery of a deed the grantor must, as a general thing, part with the possession of it, or at least with the right to retain possession. Upon a question of delivery, its registry, if by him, is entitled to great consideration, and might, perhaps, in the absence of opposing evidence, justify a presumption of delivery. But where the grantee had no knowledge of the existence of the deed, and the property which it purported to convey always remained in the possession and under the control of the grantor, and where, therefore, any registry was of course without either his assent or knowledge, the presumption of a de* livery from the fact of registry is repelled. [N. B. In the case at bar, there was an allegation that the deed registered was a forgery.]</p>