Noah Haynes Swayne

“ 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. ”

“ What if it was not recorded for many years after its execution? Papers do not lose their right to be recorded by delay. If proper papers for record at one time, they are of right recorded at any time; and when recorded of right are properly recorded.' [13]
Having been properly recorded the document was made evidence by the act of May 3d, 1846.
II. The testimony of Walker was rightly excluded. Its purpose was to discredit a testimonio making a title to land, by showing, forty years after the execution of the document, a discrepancy between the testimonio and the matrix or protocol. ”

“ On the 3d of February, while the case was a trying, a certain Simon Mussina, representing himself to be 'attorney of Thomas de la Vega,' filed an affidavit that the testimonio was, 'as he verily believed, a forged instrument.'
The plaintiff moved to strike this affidavit from the files as made out of season; the statute requiring it should be made within one day after notice of filing the document sought to be used, and the affidavit not having been made until many days afterwards. ”

“ An act of 20th December, 1836, after requiring all persons who claim lands, by deed, lien, or any other color of title, to record their instruments of title in the clerk's office of the county where the land lies within twelve months from the 1st April, makes it, by the thirty-fifth section, the duty of the clerk to record all deeds, conveyances, mortgages, and other liens, and all other instruments in writing, provided that one of the witnesses shall swear to the signature of the signer, or he, himself, shall acknowledge the same. ”

“ The testimonio, therefore, stood without any affidavit against its genuineness, and IF 'properly recorded,' was entitled, under the already quoted act of May 13th, 1846, to be used 'without the necessity of proving its execution.' But the question whether it was 'properly recorded' remained.
On the trial the plaintiff, assuming, of course, that it was, offered it in evidence without proof of its execution; and the court, under the defendant's exception, received it. Being thus in evidence, the defendant offered one T. J. Walker, to show that it was a forgery. ”

“ The defendant asked the court to charge—
1. That the jury must disregard the paper purporting to be a testimonio;
2. That unless they believed that the original grantee of the land and the person making the instrument (if it ever was made) purporting to be a power of attorney, were one and the same person, they must disregard it ”

“ 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. [23] According to an eminent Spanish authority it is full proof, unless the instrumental witnesses contradict it. [24] 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. ”

“ And that the acknowledgment by Gonzales was made by 'the person who executed the instrument.'
And that his deposition, together with that of Seguin, as to the genuineness of the handwriting of the assisting witnesses (who are residents of a foreign country) , bring the case fully within the provisions of the seventh and ninth sections.
In Edwards v. James, [11] the officer who executed the testimonio acknowledged the same, and on this it was recorded. The Supreme Court of Texas held this sufficient under the thirty-fifth section of the act of 1836. ”

“ But these assisting witnesses were not the witnesses to the signature of Vega or De la Vega to the original power of attorney. Three citizens and neighbors are declared present at the execution and delivering. Their names are given in full: Antonio Espinoza, Rafael de Leon, and Francisco de la Fuente. Neither is produced, nor is his absence accounted for. ”