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: 399
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1875.] WooD V. WELDER. 399
Argument for the appellant.
" sovereignty of the soil; and consequently, that it is not title,
" or color of title, within the meaning of the law."
Tested by these decisions, we feel authorized by the highest
power in the 'State in the position that this grant was not a
deed, tested by itself, as required in Article 4623, Paschal's Digest,
and should not have been admitted, as such, to sustain five
years' limitation under said article.
But again, the grant was not " duly registered," as required
by Act of 1839 (Paschal's Digest, Article 4974), or Act of 5th
February, 1840 (Paschal's Digest, 4975).
In Lambert v. Weir, 27 Texas, 363, the court say, upon
the same question and recorded title, that " We incline to the
"opinion that the testimonio was, under the former rulings of
" the court, not admissible in evidence without proof of its exe"
cution." The only certificate of registration that is presented
with this testimonio is, "Recorded February -, 1840."
Not even signed officially by the clerk.
In the case of Holliday v. Cromwell, 26 Texas, 193, the
certificate was as follows: " The foregoing deed was this day
"presented for record and thereupon admitted." The court
say: "There not only was no such certificate, but the certificate
"made by the clerk would seem to imply that the instrument
" was recorded upon its simple presentation, without more."
And in the case in 36 Texas, 268, the same principle is
held, and even extends beyond, and doubts the admissibility of
parol evidence that the proof was made when the instrument
was presented for record, holding that a certificate of acknowledgment,
or proof, be made upon the instrument and become
a part of the record.
From the authorities we find that the title set up by appellee,
John Welder, was not a deed, nor was it dully registered, and
that he was not " claiming under a deed or deeds duly regis"
It was contended in the court below, and may be contended
in this court, that the rule in relation to claims for lands, by
way of sale, when made to Mexican citizens by State author
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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/m1/407/: accessed August 18, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .