W. E. Jones, S. J.
The appellees were plaintiffs in the Court below; and the object of the suit, which was instituted as far back as 1839, is the recovery of a half a league of land, on the Brazos river, in Washington county, where the cause originated, having been transferred by change of venue to Travis. The land, which is the subject of contest, is part of the headright league of Wm. S. Brown, as a colonist, and is claimed by the appellees, under an Alcalde’s deed to Jared E. Groce, and a conveyance from Groce to Wm. H. Wharton, whose heirs they claim to be. The deed of the Alcalde to Groce was made to him, as purchaser at an execution sale, in October, 1828, based upon judgments alleged to have been rendered, in, 1827, against Brown. The appellants claim under a deed from Brown to one Cutter, dated and purporting to have been executed at Matamoros, in April preceding the date of the Alcalde’s deed to Groce. The judgment of the District Court, sitting without a jury by consent of parties, was in favor of the plaintiffs, appellees here.
Several bills of exception were taken to the rulings of the District Judge, on the trial, and are made grounds of error in the assignment of errors.
The first assignment of error, is, that the Judge permitted the plaintiffs to read as evidence, an agreement, purporting to be signed by the attorneys of both parties, to prove the loss of the record of the judgments against Brown in the Alcalde’s Court, under which the land was sold to Groce. The agreement admits on the part of the defendants, that two witnesses named in it, would swear to the loss of the records referred to, if they were present; and it is now insisted that the paper should have been excluded, having been intended [72]*72to serve its purpose for a single Term of the Court, and not to be used thereafter. Attorneys are presumed to be careful in malting written admissions ; they are presumed to understand the effect of those admissions ; and where they are intended to be used only for a particular trial or Term of the Court, it ought so to be expressed in the writing. Or, if any doubt exists as to the construction, which ought to be given to the agreement, then it would be manifestly proper that the party intending to resist the admission, on a subsequent trial, should give the adverse party a notice to that effect. But as the fact established by this agreement, is fully established by other evidence, it is deemed unnecessary to discuss it any further.
The second assignment is that the Court erred in permitting the plaintiff to read as evidence a paper, marked Eo. 4, and having the file Eo. 39, indorsed thereon. It is in the following words:
“The concession to Brown, under which we both claim.
“ The conveyance from Groce to Wm. II. Wharton.
“ That the plaintiffs are his heirs, and that the defendant “ was in possession when sued.
“ GILLESPIE,
“ CROSBY.”
The defendants objected to this agreement being read as evidence, because it did not appear to have been filed, and because it did not appear to apply to any particular case, pending before the Court.
A trial had been had in 1843, upon which the same paper was used to establish the same facts now sought to be established by it; and we see no impropriety in permitting the statement of facts, prepared and certified to the Supreme Court upon that trial, to be introduced for the purpose of identifying the paper, under the circumstances. Eo notice had been given that the agreement would be resisted. Three years had elapsed since the first trial, and the venue had been changed to a distant county.
At the time of the first trial in 1843, the statute did not [73]*73expressly require that every paper filed in a cause, should be marked “ filed,” with the date of filing and signature of the Clerk indorsed on it, as prescribed by the Act of 1846 ; and it was the custom at that period, to mark each paper with the file number of the suit to which it belonged, and also a number of its own, by which the absence or loss of any paper-might be ascertained by the absence of its number from the papers of the case. And it is believed to have been the uniform practice of the Courts heretofore, and we think reasonable and fair, to regard every paper found among the papers of a case, originating prior to 1846, with the file number of the suit indorsed upon it, as properly filed, unless a suspicion is cast upon it by the party objecting to it. Nor do we perceive that any hardship is imposed upon the appellant, by the ruling of the Court below, upon this point. The first admission in the paper was for the benefit of both parties ; it was natural that both parties should admit the title of Brown, under which both claimed. The other admissions in the paper are not of a character seriously to jeopardize the appellant’s rights. In the first answer, filed by him in 1841, he pleads specially that he claims the land in controversy by regular conveyances from Brown to himself, which is regarded as tantamount to an admission of possession. The remaining admissions, to wit: the conveyance from Groce to Wharton and that plaintiffs were the heirs of Wharton, are such as are frequently made in similar cases—they do not enter into the substance of the contest of title, the decision of which would settle the rights of the parties. Being subordinate facts, not derogating in any way from the merits of the appellant’s title, a presumption is raised in favor of the fairness and genuineness of the agreement as á paper properly in the case. The efficacy of the paper, when once admitted, to prove the facts stated in it, is not questioned.
The third assignment of error is, that the District Judge refused to admit as evidence a deed from Wm. S. Brown to Cutter for the land in controversy, a translated copy of which [74]*74appears in the bill of exceptions upon which this ássignment of error is founded. It purports to have been executed at Matamoros, in April, 1828, before a Rotary of that place, with the customary forms and solemnities.
■ Whether this instrument would have been admissible in evidence in the Courts of Coahuila and Texas, being executed before a Rotary of another State, without some further authentication, seems, at least, doubtful; and it is believed that an Act of legislation would have been necessary, by the certificate of some superior authority, as to the official character of• the Rotary. However that may be, it is clear that it was properly ruled out, without proof of its execution, which does not appear to have been attempted to be made. It does not come within the provisions of the statute. (Hart. Dig. 745.) Being an instrument which is not only permitted, but ought to be recorded, and having never been proven up, and recorded and filed, three days before the trial of the case, it was properly rejected without proof of its execution. Uor does it come within the provision of Article 746, Hartley’s Digest, which provides that copies of instruments between private persons, filed in the office of an Alcalde or Judge, prior to the 1st day of February, 1837, may be admitted in evidence, upon the certificate of the proper officer, having the custody of them. Hor is it aided by the indorsement on it, of its reception in the archives of Austin’s colony, in 1829. Upon no principle was it admissible in evidence, without proof of its execution.
The fourth assignment, that the District Court erred in ruling out the fifth interrogatory, propounded to Oliver Jones,.and so much of his answers to other interrogatories, as related to the manner of making the sale of the land in controversy, under the judgments againt Brown, is rendered unimportant by what has been said commenting upon third assignment. Two principal points were attempted to be established by his testimony: 1st. Rotice to Groce at the sale, of the previous sale by Brown to Cutter. 2iid. That there was no appraisement of property.
[75]*75The exclusion of the deed of Brown to Cutter from evidence, renders the notice wholly immaterial. The rejected deed, for the purposes of this decision, must be regarded as having never had existence; and notice of a prior sale, of which no evidence is produced, can work no injury to subsequent purchasers. The question, also, of the lien of the judgment, becomes immaterial. Had the deed from Brown to Cutter been fully proven and admitted in evidence, the questions of notice to the purchaser at the judgment sale, and as to the lien of the judgments against Brown, would have become important and prominent in the decision of the case. Nor is it it regarded as important to a correct decision of the case, whether the testimony of the witness Jones was admitted or ruled out, in relation to the appraisement—if admitted, it establishes nothing, and its being ruled out, could work no injury to the appellant.
The fifth assignment is, “ that the District Court, sitting as “ a jury, found in favor of the plaintiffs, in the absence of proof “ of the original judgments, or either of them—the execu- “ tions, levy, citation and decree of sale, under the laws in “ force at the time.”
This assignment brings out the most important questions arising in the case, and those most difficult of solution.
The deed of the Alcalde, Thos. M. Duke, to Jared E. Groce, the purchaser at the judgment sale, was proven on the trial. The official character of Dube was admitted; and his handwriting, and the handwriting of both the witnesses, Austin and Williams, were proven; and the deed was admitted without objection on the part of the appellant.
This deed recites, with great particularity and minuteness, the rendition of two definitive judgments against Brown, the day of-•, 1827, giving their dates, sums and names of the plaintiffs, the application for executions and their issuance, the levy upon the land in controversy, the decree of sale, and the sale on the 17th October, 1828. The deed is followed by a formal act of possession, executed with the same solemnities [76]*76and in presence of the same witnesses, and is dated four days afterwards. The judgments were not produced on the trial, nor their existence established positively, except by the recitals in the deed. The executions, levy and sale were proven by that part of the testimony of Oliver Jones not ruled out, in addition to the recitals in the deed. The loss of records of Austin’s colony, where the records of these judgments should have been, is fully established by the evidence.
It is objected by the appellant’s counsel, in his brief, that the Alcalde was not the proper person to make the deed to the purchaser at execution sale. This is a mistake; under the Civil Law, he was the proper person. The Judge may, if he choses, execute his own sentence; and when he does so, he may proceed without a written execution ; but he is, under all circumstances, the proper person to make title to the purchaser. In doing so, he speaks in the name of the debtor whose property is sold, as if his attorney in fact. He grants and conveys in the debtor’s name 'and that of his children, heirs and successors, divesting him and them of all title in the property and vesting it in the purchaser, guarantying in the name of the debtor the soundness of the title thus conveyed. The Judge subscribes the deed as grantor—“ otorgante”—in the presence of a Notary, who gives the purchaser a testimonio,- as his title. The purchaser is then placed in actual possession of the property, and an act of possession is extended with the same solemnities as the deed of conveyance. It would seem to follow as a necessary consequence from this, that the sale is, in every case, a judicial sale, and the deed a judicial act— that the recitals in the deed, of all the previous steps, from the incipiency of the suit to the sale, being necessary parts of the deed, become authenticated and proven, by the-authentication or proof of the deed. The deed, thus executed and authenticated, becomes, in the hands of the purchaser, evidence of itself alone, of title to the property, not conclusive, but sufficient, until attacked and set aside, in the manner prescribed ■ by law. It furnishes precisely the same proof of title, which [77]*77a Sheriff’s deed, supported by a valid judgment and levy, furnishes at Common Law.
In the third volume “ Febrero Mexicano,” pages 45 and 48, and also in Novissima Becop., are to be found forms of a judicial sale, and an act of judicial possession, very similar, in form, to the form of the deed, made by Alcalde Duke to Groce. The only material difference between them is, that the form in Febrero, seems to make it proper that the principal decrees in the progress of the cause, shall be copied in the deed as well as recited. As the work, in which the form is found, contains no provisions declaring it necessary to copy the decrees in the deed, the form can only be regarded as a form recommended as suitable and proper; but whether essential to the validity of the deed or not, is difficult to be determined. But even if necessary under other circumstances, the deed under consideration is entitled to be regarded in a somewhat different light. At the period of its execution, the Spanish Laws had never been promulgated among the colonists ; they could not be obtained, and Austin had been vested by the Provincial Deputation of Nueva Leon, Goahuila and Texas, with very extensive powers, civil and military, for the government of his colony. (1 White Recop. 571.) He formed a code of provisional regulations in civil and criminal matters, which was approved by the Governor of Texas. (1 White, 574.) These regulations must be regarded as having the force of laws; and rights adjudicated under them, are entitled to the protection of the Courts, at the present time. What those regulations were, are not known to the Court; but, doubtless, the proceedings, judgment, levy, sale, and acts of title and possession, by which the title of Brown to the land in controversy was divested and conveyed to Groce, were in conformity to those regulations—and that the deed is entitled to the same efficacy as similar deeds under the Spanish Laws. We must presume, in favor of the acts of the officer, that they are in conformity to the laws under which he acted. And the presumption is strengthened by the fact, that Austin was one [78]*78of assisting witnesses to the acts of title and possession exe-' cuted by the Alcalde, and probably the instruments were placed in the form in which we find them by his instructions.
Having determined that the sale was a judicial act, and that the deed was, of itself, full evidence of title, at the time of its execution, we come now to inquire whether, or not, it is entitled to the same efficacy and force at the present time. Rights acquired under former laws, remain unchanged and unimpaired under our present system. The remedies for enforcing those rights, and the rules of evidence by which they may be established, are changed; but not the rights themselves. By the rules of the Common Law, a Sheriff’s deed is not evidence of title, until the judgment and levy are produced.
Shall we apply this rule to the present case % Shall we require of the purchaser, at a judicial sale, under the Civil Law, while that system was the law of the land, to produce the judgment and levy, and other decrees of the Court in the cause ?
We have already seen, that, at the time of its execution, the deed of the Alcalde was full evidence of title; by virtue of it the purchaser was placed in actual possession of the property, and the debtor was dispossessed. We, indeed, require now, proof of its execution, according to the present laws of evidence; but, its execution once proven, the instrument itself becomes full proof of every thing of which it was the evidence, at the time of its execution. In other words, the right and the evidence of right are so blended and interwoven with each other, that one cannot be impaired without impairing the other. In this respect, it stands upon the same footing with all other deeds, executed at that period, whether deeds of commissioners of colonies or of private persons, executed before Rotaries. They are evidence now of the same rights of which they were evidence at the time of their execution.
The judgment of the Court below is affirmed.
Petition foe Reoonsideeation.
The appellant respectfully asks the Court for a reconsidera[79]*79tion of the opinion and judgment rendered in this cause. With all due respect to the Court, I do not consider that the questions, upon which the merits of this case depend, have been met and decided. The appellees were plaintiffs in the Court below. It cannot be denied that they must rely upon the strength of their own title to enable them to recover. Possession by the defendant is sufficient to enable him to defend himself against the suit of one having no title.
It is respectfully asked where is the evidence of the plaintiffs’ title. It consists of a fugitive memorandum, signed “ Gillespie, Crosby.” and is in these words:
“ The concession to Brown, under which we both claim.
“ The conveyance from Groce to Wm. H. Wharton.
“ That the plaintiffs are his heirs, and that the defendant “ was in possession when sued.”
That this paper was objected to, as stated by the Court, is true. In addition to the reasons stated by the Court, it was objected to because it did not prove title in the plaintiffs, and did not dispense with the production of the deed.
The Court, in the opinion delivered, says, “ Nor do we per- “ ceive that any hardship is imposed upon the appellant, by “the ruling of the Court below, upon this point. (That is, “ upon the admission of this paper.) The first admission in “ the paper was for the benefit of both parties; it was natural “ that both parties should admit the title of Brown, under “ which both claimed. The other admissions in the paper, are “not of a character seriously to jeopardize the appellant’s “ right. In the first answer filed by him in 1841, he pleads “ specially that he claims the land in controversy, by regular “ conveyance from Brown to himself, which is regarded as “ tantamount to an admission of possession. The remaining “ admissions, to wit: the conveyance from Groce to Wharton, “ and that plaintiffs were the heirs of Wharton, are such as “ are frequently made in similar cases; they do not enter into “ the substance of the contest of title.”
Am I right in inferring from the above, that the “ convey[80]*80anee from Groce to Wharton,” which is the plaintiffs’ title, upon the strength of which they must recover, “ does not enter into the substance of the contest of title.” If it does not, then the plaintiffs can recover upon the weakness of the title of their adversary, and not upon the strength of their own.
The Court further continues: “Being subordinate facts, not “ derogating in any way from the merits of the appellant’s “ title, a presumption is raised in favor of the fairness and “ genuineness of the agreement, as a paper .properly in the “ case. The efficacy of the paper when once admitted, to prove “ the facts stated in it, is not questioned.”
If the Court intended to state, that the paper read was efficacious to prove the title to the land in controversy to be in the plaintiffs below, and that the defendant does not question the same, I must insist that the Court is mistaken. A reference to our brief in the case, jvill show that we questioned the efficiency of the proof to establish the fact of title in the plaintiffs. That it is sufficient to establish title in the plaintiffs, is in direct contradiction of the authorities upon the subject. The paper can be taken and treated only as an admission of the defendant and as secondary evidence. Secondary evidence is never admissible when primary can be had. (1 Cowen & Hill’s Rotes, 540, note 414.)
Secondary evidence of a deed is inadmissible, until the loss of the original is first established. “ When the writing is the ex- “ elusive medium of proof, in other words when it is the best “ evidence, it must be produced or its absence duly accounted “for.” (2 Cowen & Hill, p. 1207, note 860, and the authorities there cited.)
The deed of conveyance in this case, was according to the legal rules of evidence, the exclusive medium of proof. It was neither produced, nor its absence accounted for. The Court is referred to 2 Cowen & Hill, note 865, for the cases and" circumstances in and under which admissions are allowable as secondary evidence of deeds. The paper read, neither proves the execution of the deed from Groce to Wharton, its contents or validity.
[81]*81The Court seems to have based its opinion upon this point, upon the supposition, that the suit was to be tried upon the strength of the defendant’s title, and not that of the plaintiffs.
Again, the Court say, that the deed from the Alcalde to Groce was a judicial act. This conclusion seems to me to result from the character of the officer who did the act and not from the act itself.
To my mind a judicial act is one which, from its very nature, presupposes a controversy, or subject of dispute between parties litigant—a right claimed on one side, and denied or withheld on the other, upon which the Court is called upon to investigate facts, determine rights, and pronounce judgment. The rights and interests of the parties litigant, are to be ascertained from the examination of facts and the exercise of judgment. In this case, the Alcalde did precisely what the Sheriff does under our present laws, upon a sale of land under execution, and if the Alcalde’s deed was a judicial act, it follows, per consequence, that a Sheriff’s deed is a judicial act also.
But let the deed be a judicial act, and it does not dispense with the production and proof of the judgments, without the most palpable violation of well established rules. Whether, as the Court say, the deed was proof of its recitals, under the Spanish Law, is to my mind totally irrelevant to the case. In Story’s Conf. L. 1023, the rule is laid down as follows :
u There are certain rules of evidence, which may be affirm- “ ed to be generally, if not universally recognized. Thus, in “ relation to immovable property, inasmuch as the rights and “ titles thereto are generally admitted to be governed by the “ law of the situs, and as suits and controversies touching the u same, ex directo, properly belong to the forum of the situs, “ and not elsewhere, it would seem a just and rational, if not an “ irresistible conclusion, that the law of evidence of the situs, “ touching such rights, titles, suits, and controversies, must “and ought exclusively govern in all cases.”
If the recital in one judgment, of another judgment, is evidence of such recited judgment, under the Spanish Law. it L [82]*82not so by the rules of evidence under the Common Law. (Wilson & Gibbs v. Conire, 2 Johns. R. 280.)
W. S. OLDHAM, for appellees.
Petition overruled.