McPHAUL
v.
LAPSLEY.
Supreme Court of United States.
*274 Mr. T.C. Durant, for the plaintiff in error.
Mr. P. Phillips, contra.
*282 Mr. Justice SWAYNE delivered the opinion of the court.
The action was ejectment. Lapsley was the plaintiff. The plaintiffs in error were the original defendants. In the progress of the cause the plaintiff dismissed the action as to all of them except N.A. McPhaul, and judgment was rendered against him for their costs. He recovered against McPhaul, and this writ of error is prosecuted to reverse the judgment.
The writ should have been in the name of McPhaul alone as the plaintiff in error. But as the defect is clearly amendable under the third section of the act of June 1st, 1872, it is unimportant.
There are numerous assignments of error. Except those involving points which we deem material to be considered, we shall pass them by without remark.
The affidavit of Mussina was properly stricken from the files.
The law of Texas provides as follows: "Every instrument in writing (properly recorded) shall be admitted as evidence without the necessity of proving its execution, provided that the party who wishes to give it in evidence shall file the same among the papers of the suit three days before the trial and give notice to the opposite party of such filing, and unless such opposite party, or some other person for him, shall within one day after such notice file an affidavit stating that he believes such instrument to be forged."[*]
The affidavit was filed by Mussina as the attorney of De la Vega. It set forth that the instrument of writing purporting to be a testimonio or second original of a power of attorney from Thomas de la Vega, by the name of Thomas Vega, to Samuel M. Williams, dated May 5th, 1832, was, as affiant verily believed, a forgery. The testimonio was one of the plaintiff's files in the case for the purposes of evidence *283 upon the trial. The object of the affidavit was to throw the burden of proof upon the plaintiff.
He had given the proper notice to the defendants on the 16th of January, 1872. The affidavit was filed, not within one day thereafter, as the statute required, but on the 5th of February following, while the trial was in progress. De la Vega, in whose behalf it was filed, was not a party to the record.
It is insisted that the testimonio was improperly admitted to record, and that it was not properly admitted in evidence. These objections present questions of local law.
The instrument is as follows:
It bears date on the 5th day of May, 1832, and sets forth that Thomas Vega, Rafael Aguerre, and José Ma. Aguerre, of the city of Leona Vicaria, appeared before Juan Gonzales, regidor of that city, and declared that they conceded to Samuel May Williams, a resident of the city of Austin, full power, "in order that in the names of the appearers" he might proceed to sell the lands therein described. "And to confirm all that may be granted and executed, the appearers bind themselves, their persons, and their property present and to come." It concludes, "Thus have they granted and signed it in presence of these witnesses, Antonio Espinosa, Rafael de Leon, and Francisco de la Fuentes, Gonzales, residents of this city.
"I attest: Juan Gonzales. Thomas Vega, José Ma. Aguerre, Rafael Aguerre."
The following memorandum was affixed:
"Copy from the original, with which it agrees, the day of its execution; given on two `useful' pages of paper, of the second stamp, conformable to law. All of which I, the undersigned judge, officiating with those assisting me according to law, hereby attest.
"JUAN GONZALES. "Witness: JOSE NAZO ORTIZ, J.M. MORAL."*284 Affidavits are annexed upon which it was recorded, in McClennan County, September 7th, 1856, and again, September 22d, 1858; in Falls County, October 6th, 1859, and in Williamson County, October 15th, 1859. The affidavits were all sworn to in Texas. Among them are, one proving the handwriting of Gonzales and the attesting witnesses Moral and Ortiz and that, if living, they are residents of Saltillo, in the State of Coahuila; one by Gonzales, made July 13th, 1857, proving that the testimonio was executed by him at the personal request of the grantors named therein and in their presence, and that his signature thereto, and those of Moral and Ortiz, are all genuine; that Thomas de la Vega executed a certain other power of attorney before him to S.M. Williams on the 28th of April, 1832, and that "the said Thomas de la Vega, who executed this testimonio, is one and the same person."
The testimonio here in question being a copy from the protocol, or original instrument, made by the officer by whom the protocol was executed, was, in the eye of the Spanish law and of the law of Texas, "a second original," and of equal validity and effect with the prior one.[*]
That Gonzales had authority adequate to the function he performed, and that the testimonio was valid, was held by this court in Spencer v. Lapsley.[]
In relation to the recording of the instrument, our attention has been called to the following statutes of Texas: the act of the 20th of December, 1836, sections thirty-five and forty; the act of May 10th, 1838; the act of January 19th, 1839; and the act of May 12th, 1846, sections four, five, seven, eight, and nine. A careful examination of these statutes has satisfied us that the registration was authorized by law. If there could be any doubt upon the subject it is *285 removed by the Texas adjudications[*] upon the subject, referred to in the argument of the learned counsel for the defendant in error. A certified copy from the office where the testimonio was recorded would, therefore, have been competent evidence. The original, with the recorder's indorsement, would, as a consequence, also have been admissible. In such cases, it would be a solecism to receive the copy and reject the original.
In this case the plaintiff offered the testimonio in evidence, and it was properly received. It would have been admissible without recording. In Martin v. Parker,[] it was objected that an act of sale of real estate, not having been signed by the instrumental witnesses, was inadmissible without proof of its execution. The court replied: "We do not think the objection well taken. In McKissick v. Colquhoun,[] Chief Justice Hemphill said: `The signature of a judge or alcalde acting in place of a notary, authenticated by two assisting witnesses, has all the force and effect of the signature and seal, or rubric, of a notary.'"
The defendant offered to prove by T.I. Walker, a witness present, that in the year 1868 he went from Austin, Texas, to Saltillo, formerly Leona Vicaria, in Coahuila, Mexico, and there examined the books of protocols in the office of the secretary of the ayuntamiento; that he found in the book of protocols for the years 1832 and 1833, among others a protocol of a power of attorney, in the Spanish language, of the date of May 5th, 1832, from José Maria Aguerre to Samuel M. Williams, giving Williams the power to sell the land granted by the government to Thomas la Vega and Rafael and José Maria Aguerre, to wit, eleven leagues each; that said protocol had to it no signatures but those of Gonzales and José Maria Aguerre, and that it had no signatures *286 of witnesses; that in said protocol-book, and of the date of April 28th, 1832, he found an original protocol of a power of attorney, signed by José Maria de Aguirre, or Aguerre, and Thomas de la Vega and Juan Gonzales, with attesting witnesses Ortiz and Moral; that this power was to Samuel M. Williams; and that in said book, from the power of attorney of the 28th of April, 1832, to the power of the 5th of May, 1832, inclusive, there were seven leaves, and no visible evidence of any mutilation of the book; that there are no protocols of any power of attorney from either Maria de Aguirre, or Aguerre, or Thomas de la Vega, to any one, in said seven leaves, except the two named above; and that the witness had in his hands then in court photographic copies of said seven leaves, showing exactly the facts above mentioned as to the protocol-book and the said two powers of attorney as of record therein.
The plaintiff objected to the admission of the evidence. The court sustained the objection and the defendant excepted.
It has been shown that the testimonio is "a second original," and of the same effect with the protocol.[*] According to an eminent Spanish authority it is full proof, unless the instrumental witnesses contradict it.[] Here neither Vega, either of the Aguerres, Gonzales, Moral, nor Ortiz was produced; nor was their absence accounted for. The bill of exceptions states that the witness had the photographic copies in his hands in court not that they were offered in evidence. But perhaps it is only fair to construe the bill of exceptions so as to give it that effect. Conceding this, the only testimony offered was that of Walker, and the two photographic copies. It does not appear to have been suggested that this was to be followed by any further testimony. The copies had been in the possession of Walker more than three years; yet it is not shown that the plaintiff had any notice *287 of them until they were suddenly produced by the witness in the midst of the trial. It is also significant that the agent who went on the visit of exploration to Saltillo did not claim to have discovered anything whatever adverse to the testimonio, except the state of the protocol as it appeared of record. Nor did the defendant, enlightened as he must have been by Walker, invoke the testimony of the keeper of the archives, or of any other person residing in the locality where they were kept. The plaintiff's petition was filed in 1863. Walker's discovery was made in 1868. The trial was in 1872. There was time between the two periods last mentioned to procure ample testimony from Saltillo and elsewhere touching the fraud and forgery charged, if they were believed to exist. The defendant was silent. The record is a blank as to any such testimony given, offered, or suggested, except the isolated circumstances offered to be proved by Walker and the two photographic copies. These are pregnant facts. Copies of the photographs are not given in the bill of exceptions; nor are the contents of the power to Williams, of the 28th of April, given in whole or part. That is stated to have had upon it the names of José Maria Aguerre and Thomas de la Vega as grantors, and of Gonzales with those of Moral and Ortiz as assisting witnesses. It is possible that the testimonio may, by the mistake of the copyist, have the date of the latter instead of the earlier instrument, or that if the fuller and better evidence, which the defendant was bound to give, had been produced, the apparent discrepancies between the two documents in question might have been explained in a manner consistent with the integrity of all concerned and the validity of the testimonio. It should at least have been shown by some one officially connected with the office, that the book seen by the witness was the book, and the only book there wherein the instrument could have been properly recorded, and that there was no such protocol anywhere in that book, or elsewhere in the office. It is also possible it was known in the office that the missing signatures had been removed by some dishonest hand.
*288 The testimony proposed to be elicited from Walker fell far short of the requisite standard. A party is not permitted to give secondary evidence where it presupposes better evidence within his reach, which he fails to produce. In Renner v. Bank of Columbia,[*] this court, speaking of such evidence, said: "Every case must depend in a great measure upon its own circumstances. The rule of evidence must be so applied as to promote the ends of justice, and guard against fraud and imposition."
It appears incidentally by the record that there has been a great amount of litigation, extending through a long period of time, touching the lands to which this testimonio relates. The protocol and testimonio bear date more than forty years ago.
The record does not show that during this long period either of the Aguerres ever questioned the validity of the latter, or that La Vega ever assailed it by his own sworn testimony.
Large and diversified interests must have grown up on the faith in its genuineness. In this case the attack upon the instrument is not made by either of the grantors, but vicariously by the defendant, who claimed under a distinct and hostile title which he wholly failed to establish.
Under all the circumstances, we think the testimony of Walker was properly excluded.
In our judgment the court was correct as to the instructions given and those refused, to which the exceptions touching that subject relate.
We direct, sua sponte, the writ of error to be amended by striking from it the names of all the plaintiffs except McPhaul; and the judgment of the Circuit Court is
AFFIRMED.
NOTES
[*] Section 90, act 13th May, 1846, p. 387, referred to in Hanrick v. Barton, 16 Wallace, 166.
[*] 1 Partidas, 222; Owings v. Hull, 9 Peters, 625; Mitchel v. United States, Ib. 732; Smith v. Townsend, Dallam's Digest, 570; Herndon v. Casiano, 7 Texas, 332.
[] 20 Howard, 274.
[*] Guilbeau v. Mays, 15 Texas, 414; Henderson v. Pilgrim, 22 Id. 476; Secrest v. Jones, 21 Id. 133; Paschal v. Perez, 7 Id. 348; Edwards v. James, Ib. 877.
[] 26 Texas, 260.
[] 18 Id. 151.
[*] Mitchel v. United States, 9 Peters, 732; Herndon v. Casiano, 7 Texas, 832.
[] 4 Sala, 127, 130, 136.
[*] 9 Wheaton, 581.