Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 22
22 ANN BERTA LODGE V. LEVERTON. [Tyler Term,
Opinion of the court.
could only be proved by producing the grantor in court.
This is evidently no valid objection to proof of the execution
of such an instrument, when its execution is sought
to be established by proof of the genuineness of the signature
of the grantor. That the grantor is living within the
jurisdiction of the court certainly does not preclude proof
of the execution of a deed by proof of the genuineness of
his signature, if the evidence offered for this purpose is
otherwise admissible. It was also objected that the questions
addressed to the witnesses and his answers were not
legal, and did not lay the proper predicate. The supposed
illegality of the questions and answers and want of proper
predicate is not indicated in the bill of exceptions or brief
of counsel. The questions and answers seem precisely
those which are usual and customary when the signature
to an instrument is being proven. It is quite obvious, if
the proper objection had been made, that the instrument
should have been proven otherwise than it was, or it should
have been excluded. But it is well settled that this court,
can only consider such objections as were made in the
court below; and as neither of those which were made
were well taken, we cannot say that the court erred in
overruling them and permitting the instrument to go tcy
the jury. If the proper objection had been made to it, for
aught we can say, the execution of the power would have
been shown in such manner as to authorize its going to the
The defendants also sought to destroy the legal effect of
the instrument by instructions to the jury, in the nature of
objections to the sufficiency of the proof upon which it
was admitted in evidence. This was evidently not th1
proper time and manner of depriving the plaintiff of the
benefit of it as evidence in the case. The question of its
admissibility was for the court and not the jury, and could
only be made when the evidence was offered in linine. It
would have been gross injustice for the charge of the court
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/30/ocr/: accessed December 8, 2016), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .