Quinau, J.—
1. As to the proof of the execution of the deed. The effect of the affidavit of Mr. Cairrell, that the deed was a forgery, was simply to put the defendants upon proof of its due execution. That proof must be made by [61]*61the production of the subscribing witnesses, or one of them, if any, if he be living, but if the subscribing witnesses be dead or incompetent to testify, or cannot be procured, and in other like cases, then secondary evidence of its execution is admissible, and this proof is made by proving the handwriting of the subscribing witnesses. Hr. Greenleaf says there are two modes of acquiring knowledge of the handwriting of another, either of which is universally admitted to be sufficient to enable a witness to testify to its genuineness. The first is from having seen him write. It is held sufficient for his purpose that the witness has seen him write but once, and that only his name. The second mode is from having seen letters purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them, etc. 1 Greenleaf, 769, 762.
Where the secondary evidence is offered because of the death of the witness, proof, of course, must be made of the identity of the witness and of his death. How in this case, although J. D. Higgs was permitted to prove the death of the witness Bailey, and this was irregular, yet his death was proven by the witnesses Johnson and Lawson, and their testimony to the due execution of the deed was a full compliance with the rule laid down, and in our opinion entitled the defendants to read it in evidence. It is true that J. D. Higgs appears as a subscribing witness to the deed, but he was incompetent to be a witness to its execution, incompetent to testify to its execution, and he was on that ground objected to by plaintiff. It is objected, also, that the proof adduced was not sufficient, as not in conformity to the rules prescribed for the registration of deeds. But it is to be observed that those rules assume to regulate only what shall be required to entitle a deed to be recorded, and have no reference to the proof necessary upon the introduction of a deed upon a-trial in open court. They are properly more rigid, because the proceeding is ex ¡xtrte, and the witnesses testifying are not subjected to a cross-examination.
The deed then being in our opinion properly admitted in [62]*62evidence, the only evidence adduced to establish its invalidity was that of Mrs. Ramsey, the plaintiff’s mother. And weighing it carefully, we can find in it nothing in our judgment to overbalance the due proof of the execution of the deed. It is true, she says she received rent for the land for 1857 and 1858, through her agent or attorney, but that is not inconsistent with the fact that the deed was executed in May, 1858. There is no pretense that until 7th May, 1858, Mr. Higgs was the owner of the land. The most material fact to which she testifies is that her husband was at home for six months before his death, had not visited his brother that year, nor his brother visited him; that all she knew as to where her husband was for six months next before his death is that he was farming that year, had hands employed, and was busy at his farm. But we are left to speculate whether the farm and the home were at the same place; whether she herself might not have been absent during a brief portion of the time; whether Bossier Parish and Rusk are near or remote, and whether a trip might not have been made during the time from one to the other by James Higgs without leaving an impression upon her memory. Upon this point we think, however, the testimony of Mrs. Higgs, of J. D. Higgs and of the witness Johnson is entitled to greater weight. Higgs and wife both swear to the presence of James Higgs in Rusk county about the 7th May, 1858; Mrs. Higgs giving the incidents then of his execution of the deed, the payment to him of the money, and the delivery of the deed to her, and Johnson testifying to the fact of the offer to sell him the negro boy, his declaration that he had sold out his property in Texas, and other facts to identify the time and place.
There is another portion of Mrs. Ramsey’s testimony which, in our opinion, tends to prove the execution of the deed. She says that “J. D. Higgs lived on the land to keep James Higgs’ creditors from taking it.” How, it would occur to a very simple-minded'person that merely living on the land as James Higgs’ tenant would be a very ineffectual way of protecting it from his creditors, but that if such [63]*63were the purpose, a conveyance of the land would offer better chances of effecting it, and would most probably be resorted to. In connection with.Mrs. Ramsey’s testimony, we may observe that it is not a little singular that if James Higgs had 'made no conveyance of this land that she, although the proof shows she was the owner of five-eighths of it, made no claim for it, or for the rents of it, from 1858 to the present time, so far as this record discloses.
The deed is sent up for our inspection that we may “see that one man signed the name of both the Higgses.” In relation to this it is sufficient to observe that we have no proof before us as to who wrote the body of the deed; that we cannot say, from an inspection of it, whether James of Jere wrote it; and that if it were "shown that in fact James wrote “ Jeremiah D. Higgs ” to it, as the name of the subscribing witness, that would not invalidate the deed. Ragsdale v. Robinson, 48 Tex., 379.
But it is assigned for .error that the court erred in permitting Mr. and Mrs. Higgs to testify, and we are referred to the case of Gee v. Scott, 48 Tex., 515, in support of this assignment. After a very careful consideration of the judgment of the court in that case, we are strongly inclined to the opinion that it does not support this assignment. The sole question decided in that case is that husband and wife cannot be witnesses for or against each other, and this only upon the ground of public policy; and the opinion does not say, nor do we think it is fairly deducible from the language of the court, that husband and wife are incompetent to testify for themselves and in the protection of their own interests. We are unable to perceive how to permit them so to do would be violative of that policy which has been invoked. Mr. Green leaf thus states the grounds of that public policy: “It is essential to the happiness of social life that the confidence subsisting between husband and wife shall be sacredly protected and cherished in its most limited extent, and to break down or impair the great principles which protect the sanctity of that relation would be to destroy the best solace of human exist[64]*64ence.” How, doubtless, to permit husband and wife to testify for or against each other without restriction, to permit them to testify to communications made, or conversations had, or information acquired in the intimacy of connubial intercourse, would be subversive of this policy. And it may be that the bias of affection is more potent than the bias of self-interest to pervert the truth.
But it will be seen from the statement of the testimony of Mr. and Mrs. Higgs, which we have given, that they were each restricted by the judge to proof of such facts as were peculiarly applicable to their separate defenses. Mr. Higgs stated such only as tended to relieve him of the claim .made upon him for rents and damages, and Mrs. Higgs testified to those only which were necessary to support her title. Heither testified to communications made by the other, nor for the other, except incidentally.
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Quinau, J.—
1. As to the proof of the execution of the deed. The effect of the affidavit of Mr. Cairrell, that the deed was a forgery, was simply to put the defendants upon proof of its due execution. That proof must be made by [61]*61the production of the subscribing witnesses, or one of them, if any, if he be living, but if the subscribing witnesses be dead or incompetent to testify, or cannot be procured, and in other like cases, then secondary evidence of its execution is admissible, and this proof is made by proving the handwriting of the subscribing witnesses. Hr. Greenleaf says there are two modes of acquiring knowledge of the handwriting of another, either of which is universally admitted to be sufficient to enable a witness to testify to its genuineness. The first is from having seen him write. It is held sufficient for his purpose that the witness has seen him write but once, and that only his name. The second mode is from having seen letters purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them, etc. 1 Greenleaf, 769, 762.
Where the secondary evidence is offered because of the death of the witness, proof, of course, must be made of the identity of the witness and of his death. How in this case, although J. D. Higgs was permitted to prove the death of the witness Bailey, and this was irregular, yet his death was proven by the witnesses Johnson and Lawson, and their testimony to the due execution of the deed was a full compliance with the rule laid down, and in our opinion entitled the defendants to read it in evidence. It is true that J. D. Higgs appears as a subscribing witness to the deed, but he was incompetent to be a witness to its execution, incompetent to testify to its execution, and he was on that ground objected to by plaintiff. It is objected, also, that the proof adduced was not sufficient, as not in conformity to the rules prescribed for the registration of deeds. But it is to be observed that those rules assume to regulate only what shall be required to entitle a deed to be recorded, and have no reference to the proof necessary upon the introduction of a deed upon a-trial in open court. They are properly more rigid, because the proceeding is ex ¡xtrte, and the witnesses testifying are not subjected to a cross-examination.
The deed then being in our opinion properly admitted in [62]*62evidence, the only evidence adduced to establish its invalidity was that of Mrs. Ramsey, the plaintiff’s mother. And weighing it carefully, we can find in it nothing in our judgment to overbalance the due proof of the execution of the deed. It is true, she says she received rent for the land for 1857 and 1858, through her agent or attorney, but that is not inconsistent with the fact that the deed was executed in May, 1858. There is no pretense that until 7th May, 1858, Mr. Higgs was the owner of the land. The most material fact to which she testifies is that her husband was at home for six months before his death, had not visited his brother that year, nor his brother visited him; that all she knew as to where her husband was for six months next before his death is that he was farming that year, had hands employed, and was busy at his farm. But we are left to speculate whether the farm and the home were at the same place; whether she herself might not have been absent during a brief portion of the time; whether Bossier Parish and Rusk are near or remote, and whether a trip might not have been made during the time from one to the other by James Higgs without leaving an impression upon her memory. Upon this point we think, however, the testimony of Mrs. Higgs, of J. D. Higgs and of the witness Johnson is entitled to greater weight. Higgs and wife both swear to the presence of James Higgs in Rusk county about the 7th May, 1858; Mrs. Higgs giving the incidents then of his execution of the deed, the payment to him of the money, and the delivery of the deed to her, and Johnson testifying to the fact of the offer to sell him the negro boy, his declaration that he had sold out his property in Texas, and other facts to identify the time and place.
There is another portion of Mrs. Ramsey’s testimony which, in our opinion, tends to prove the execution of the deed. She says that “J. D. Higgs lived on the land to keep James Higgs’ creditors from taking it.” How, it would occur to a very simple-minded'person that merely living on the land as James Higgs’ tenant would be a very ineffectual way of protecting it from his creditors, but that if such [63]*63were the purpose, a conveyance of the land would offer better chances of effecting it, and would most probably be resorted to. In connection with.Mrs. Ramsey’s testimony, we may observe that it is not a little singular that if James Higgs had 'made no conveyance of this land that she, although the proof shows she was the owner of five-eighths of it, made no claim for it, or for the rents of it, from 1858 to the present time, so far as this record discloses.
The deed is sent up for our inspection that we may “see that one man signed the name of both the Higgses.” In relation to this it is sufficient to observe that we have no proof before us as to who wrote the body of the deed; that we cannot say, from an inspection of it, whether James of Jere wrote it; and that if it were "shown that in fact James wrote “ Jeremiah D. Higgs ” to it, as the name of the subscribing witness, that would not invalidate the deed. Ragsdale v. Robinson, 48 Tex., 379.
But it is assigned for .error that the court erred in permitting Mr. and Mrs. Higgs to testify, and we are referred to the case of Gee v. Scott, 48 Tex., 515, in support of this assignment. After a very careful consideration of the judgment of the court in that case, we are strongly inclined to the opinion that it does not support this assignment. The sole question decided in that case is that husband and wife cannot be witnesses for or against each other, and this only upon the ground of public policy; and the opinion does not say, nor do we think it is fairly deducible from the language of the court, that husband and wife are incompetent to testify for themselves and in the protection of their own interests. We are unable to perceive how to permit them so to do would be violative of that policy which has been invoked. Mr. Green leaf thus states the grounds of that public policy: “It is essential to the happiness of social life that the confidence subsisting between husband and wife shall be sacredly protected and cherished in its most limited extent, and to break down or impair the great principles which protect the sanctity of that relation would be to destroy the best solace of human exist[64]*64ence.” How, doubtless, to permit husband and wife to testify for or against each other without restriction, to permit them to testify to communications made, or conversations had, or information acquired in the intimacy of connubial intercourse, would be subversive of this policy. And it may be that the bias of affection is more potent than the bias of self-interest to pervert the truth.
But it will be seen from the statement of the testimony of Mr. and Mrs. Higgs, which we have given, that they were each restricted by the judge to proof of such facts as were peculiarly applicable to their separate defenses. Mr. Higgs stated such only as tended to relieve him of the claim .made upon him for rents and damages, and Mrs. Higgs testified to those only which were necessary to support her title. Heither testified to communications made by the other, nor for the other, except incidentally. It is difficult for us to perceive how permitting them to so testify would break down or impair the great principles which protect the sanctity of the domestic relation, or destroy the best solace of human existence. But it is not difficult to see that to deprive them of the right extended to every other litigant, to testify for himself, would be a very effective means for the destruction of their rights of person and property.
But however that may be, we think that without resorting to the testimony of Mr. and Mrs. Higgs, and excluding that altogether from consideration, the judgment is well supported by the testimony of the witnesses adduced who were competent and uni'mpeached. If we admit, therefore, that Mr. and Mrs. Higgs were improperly permitted to testify, it does not follow that the judgment must be reversed.
In Millican v. Millican, 24 Tex., 453, it is said: “ Where a case has been decided by the court without a jury, it is not a ground for reversing a judgment, that the court may have heard evidence which was not legally admissible, if it has no influence on the result, and the case was rightly decided upon evidence which was competent and sufficient.”
In Beaty v. Whitaker, 23 Tex., 529, it is said: “The case was submitted to the decision of the court, and the [65]*65. judgment having been rightly rendered upon evidence which was legal and proper, though the judge may have heard evidence which was not competent, as it can have no influence upon the judgment, it is not a ground of reversal.”
[Opinion delivered November 26, 1879.]
And in Melton v. Cobb, 21 Tex., 543, the court say: “As the judge sat to hear and decide the cause without a jury, his having heard incompetent evidence, if such was the case, would not require a reversal of the judgment where there was competent evidence sufficient to authorize its rendition. The court would discriminate between evidence which was legal and which was not, giving the former the weight to which it was entitled, and rejecting the latter.”
We conclude, then, that by the testimony of Lawson and Johnson, the execution of the deed from Higgs to Higgs was well proven, and that there is no error in this judgment which requires its reversal, and that it be affirmed.
Affirmed.