Younge v. Guilbeau
70 U.S. 636

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U.S. Supreme Court

Younge v. Guilbeau, 70 U.S. 3 Wall. 636 636 (1865)

Younge v. Guilbeau

70 U.S. (3 Wall.) 636

Syllabus

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.

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.

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 delivery

Page 70 U. S. 637

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.]

A statute of Texas, relating to the registry of deeds &c., provides as follows: [Footnote 1]

"Every instrument of writing which is permitted or required by law to be recorded in the office of the clerk of the county court and which has been, or may be so recorded after being proven or acknowledged in the manner provided for by the laws in force at the time of its registration, shall be admitted as evidence without the necessity of proving its execution, provided the party who wishes to give the same in evidence shall file the same among the papers of the suit in which he proposes to use it at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party, or his attorney, of record, and unless such opposite party, or some other person for him, shall, within one day after such notice, file an affidavit that he believes such instrument of writing to be forged. And whenever any party to a suit shall file among the papers of the suit an affidavit stating that any instrument of writing recorded as aforesaid has been lost or that he cannot procure the original, a certified copy of the record of any such instrument shall be admitted in like manner as the original could be."

With this statute in force, Mrs. Younge brought trespass against Guilbeau and eleven others in the Federal Court for the Western District of Texas to try the title to a lot of ground in that district. She proved that the lot belonged originally to one Nixon, her ancestor, now deceased, and that she was his sole heir. Guilbeau and the others, defendants in the case, admitting the original ownership alleged, set up that Nixon had conveyed the lot, by deed, in his lifetime to a certain Shelby, from whom they, Guilbeau and the other defendants, derived title to themselves.

The suit thus involved, in its merits, the existence of a deed from Nixon to Shelby.

Page 70 U. S. 638

No original deed to Shelby was produced. A document, however, purporting to be a deed executed by Nixon to Shelby embracing the premises in question, bearing date the 10th day of October, 1838, and acknowledged the 29th of the same month, had been filed for record on the 7th of December, 1846, in the office of the clerk of the proper county in Texas, and was afterwards in due form placed on the records of the office. A certified copy of this instrument was offered in evidence by the defendants and admitted against the objection of the plaintiffs.

The defendants, on their side, and as a foundation for the admission of this certified copy, relied upon various affidavits by one of the defendants and the counsel of the others to show a loss of or inability to procure the original. None of the affidavits, however, though circumstantial enough, was clear and direct to this point, nor did any of them show, plainly and as a matter of fact that the deed (genuine or forged) which had been recorded might not yet be in the possession or control of some of the numerous defendants.

The plaintiff, on her side, and in anticipation that this certified copy instead of any original would be offered in evidence, had filed an affidavit under the statute that the original instrument purporting to be a conveyance from her ancestor to Shelby, and of which a copy was now offered, was, as she verily believed, "forged."

The court charged the jury with respect to the effect of this affidavit as follows:

"It furnishes no proof whatever to the jury that such deed is a forgery. It merely lays the foundation, or affords a basis, upon which the plaintiff might introduce evidence to sustain the charge and show to the satisfaction of the jury, if she could, that it was in fact a forgery."

And further, in the same connection and on the same point, the court refused the following instruction asked by the plaintiff as to the effect of the affidavit, to-wit:

"It devolves upon the defendants, in order to enable them to hold the property under the said deed, to show, by evidence

Page 70 U. S. 639

satisfactory to the jury, that the said deed was in fact signed, sealed, and delivered by Nixon in his lifetime. Otherwise the fee (the legal title) to the property remained in him at the time of his death, and was cast by descent on his heirs."

As to the delivery of the deed by Nixon to Shelby, the later testified that he never knew of the existence of the deed until after the death of Nixon and that he never made any claim to the property, and the evidence showed that the deed and the property which it purported to convey remained in the possession and control of the grantor until his death.

The court, at the instance of the defendant, charged the jury on this head as follows:

"This suit is not to be regarded as the contest of creditors against the deed, nor as a contest between deeds of different dates, but as a contest, just as though Nixon himself was the plaintiff, his heir being bound by all his acts. And if he made the deed, the question of consideration is of no consequence, because as between Nixon and Shelby or Shelby's vendors, the deed was binding whether there was any consideration or not or whether the deed was actually delivered to Shelby or not. If it was Nixon's deed and Shelby acted under it, Mrs. Younge is bound by those acts."

The defendants had judgment, and the plaintiff brought her writ of error here.

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