Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13. Page: 44
viii, 382 p. ; 22 cm.View a full description of this book.
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87-88 SUPREME COURT.
Mays v. Moore.
'"Know all men by these presents that I, James Smith, administrator
"of JasI. Garretson, deceased, by virtue of an order of the Probate Court in
"land for the county aforesaid, (Bastrop,) did expose the within claim at pub"lic
sale in the town of Bastrop, on the 28th May, 1838, to the highest bidder,
"on a: credit of six months, and Thomas 11. Mays being the highest and best
"l)i(lder, at the sum of four hundred and fifty dollars. and it was struck down
"to himn at that sum, for which I bind myself, my assigns, and the heirs and
a'si'ins of Thonm:e: Garretson, so far as the ability in me exists as administratoI,
to make a gl od and sufficient title to the said land, if the said bidder
"should not receive the patent in his own name, so soon as title is obtained for
"the same. Given under my hand in the town of Bastrop this 28th May, 1838.
"JAMES SMITH. [L. S.]"
The defendant offered to prove by oral testimony that there had been an
order of sale, that the return of the sale had been made to the Court, and that
the same had been approved by the said Court; which evidence was rejected
by the Court, and there was a verdict and judgment for the plaintiffs; a motion
for a new trial made and overruled, from which the defendants appealed.
The first assignment of error, that the Court compelled the defendants to
read the whole transcript in evidence of all the matters and things of record
in relation to the succession of the said Thomas Garretson, when they only
offered to read two pages of the same,-is not supported by the record. It appears
that the whole transcript was read by the defendants without any ruling
of the Court that it should be done, or offer on their part to read only a part
of it.
The second one is, that the Court erred in rejecting the evidence offered to
prove that the order for sale had been made by the Probate Court, the return of
the sale by the administrator, and the approval and confirmation thereof by the
Probate Court. It appears from the record that Smith, the administrator, was
called by the defendants. He testified that [88] he had sold the certificate
under an order of the Probate Court, and returned to the Court an account
thereof, which was approved and confirmed by the Court; that he had looked
for the order of the Court for the sale and for the confirmation, and could not
find them on the records, though lie had seen them there; that the records
have been carelessly kept and much mutilated; and he believes that the record
has been destroyed. Dunbar, the keeper of the records and Clerk of the Court,
swears that the order and confirmation cannot be found of record, and confirms
the evidence of Smith, that they had been carelessly kept and some of
them mutilated; but he swears "that he had examined the minute-book of
"the Court for 1837 and 1838; that he could find no mutilation in said minute"book
between the period of granting letters of administration upon the estate
"of Thomas Garretson and the (late of transfer by James Smith, administrator
"of said Garretson, indorsed on the certificate aforesaid, and that there was a
"continuation in said book from page to page connecting the orders." The
minute-book was inspected by the Court, and it was ruled that the evidence
of the destruction-of the records was not made out, and the Court rejected the
oral evidence that such orders had been of record.
It is always a question addressed to the discretion of the Court to determine
whether the basis has been laid by proving the loss or destruction of a record,
to let in proof that such record once did exist. This discretion is not an arbitrary,
capricious discretion, but must be a reasonable conclusion from the evidence.
But unless we were fully satisfied from the evidence that the Court
below erred in the exercise of its discretion, we would not be authorized to reverse
its decision. Parol evidence to supply record testimony should be received
with great caution. In such cases the temptation to fraud and perjury
would be very great, and the difficulty, if not the impossibility, of a conviction
for perjury, and of rebutting such evidence, would be an encouragement to
an unscrupulous witness. It is a rule of law that affirmative evidence is entitled
[89] to more weight than negative. So one witness might swear to the
44 o
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13., book, 1876; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28561/m1/52/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .