Deen v. Wills (21 Tex. 642, 1858)

Wheeler, J.

The proof is clear that the defendant had been in the uninterrupted adverse possession of the land in controversy, cultivating and paying taxes upon it, and claiming under a deed recorded, for a period more than sufficient to give title under the 16th Section of the Statute of Limitations. If the proof was made by competent means, it cannot be doubted that he was well entitled to the verdict and judgment. But it is objected to the judgment that the deed of the 24th of December, 1847, under which the defendant claimed, was not duly registered, because not probated for registry in . accordance with law ; and that the copy was erroneously admitted in evidence. The objection is that the certificate of probate does not state that the witness signed as a witness at the request of the grantor. We do not think it essential to the validity of the registry that it should so state. That would be a more formal compliance with the direction of the Statute in making the certificate. But the Statute- does . not prescribe the form of the certificate ; but only that the officer taking, the proof shall make a certificate thereof. All that can be required 'is that-the certificate shall contain the substance of the proof ; and if it contains all that is essential , to prove the due execution of the deed, it must be deemed a substantial compliance with the requirement of the Statute. It is not essential to the proof of the due execution of the instrument, that the witness should depose to the fact of his having signed at the request of the grantor. The presumption is that the subscribing witness did so sign, and the statement would add nothing to the legal effect of the certificate or the proof. In order to render the copy of a deed admissible in evidence under the Statute, (Art. 745,) it must have been admitted to record upon the requisite acknowledgment or proof; and the certificate of probate should afford evidence of the sufficiency of the proof. But if it does so substantially, though informally, that is all that ought to be required. The numerous adjudged cases upon the sufficiency of such certificates are collected in the note to Phillip’s Evidence, to which we have been referred by counsel for the appellant. “ All that is required (it is there said) in respect to the frame of these certificates is a substantial compliance with the law under which they are made. When substance is found, it is neither the duty nor inclination of Courts to jeopardize titles, in any way depending upon them, by severe criticism upon their language.” (Cow. and H. Notes, Part 2, n. 254 to p. 247.)

Thus, where a certificate of proof stated that A. B. appeared before the officer and made oath,