The opinion
On Motion for Rehearing.
Plaintiffs in error in their motion for rehearing assail our holding that the certified copy of the notarial act of sale from Thomas Sloo, Jr., to James W. Byrne was admissible ip evidence, urgjng, among other contentions, that since the a’ct of sale wad executed before a notary public of Louisiana, in April, 1839, when, under the laws of Tesras, a notary was not authorized to take acknowledgments to deeds, the notarial act was not admissible to record at the time it was made, and was never .validated by subsequent legislation. This particular contention was not discussed in our original opinion, and we deem it of sufficient importance to warrant a record of our views.
As pointed out in our original opinion, the act of January 19, 1839 (2 Gammel’s Laws, p. 52), which by its terms repealed all laws contrary to or conflicting w,ith it, did not authorize the recording of instruments acknowledged before notaries public. Prior to that time it was generally held that notaries could take acknowledgments to deeds, although the statutes upon the subject may not have in express terms so provided. The statutory enactments in this regard were: Acts of 1836 (P. D. art. 4678); June 12, 1837 (P. D. art. 4680); November 16, 1837 (P. D. art. 4681); 1838, p. 10. . By section 5 of the Act of February 5, 1840 (2 Gammel’s Laws, p. 328), clerks were required to record all deeds and other instruments “upon the certificate of some district judge or chief justice, or notary public of a county, with the seal of his office thereunto annexed, that such acknowledgment was made, or the execution of the instrument proven as required above.” Section 20 of the Act of February 5, 1841 (2 Gammel’s Laws, p. 632; P. 1>. art. 4977), provided that deeds and other instruments required or permitted to he recorded, “and which shall have been heretofore registered, shall, from the passage of this act, be held to have been duly registered, with'the full effects and consequences of the existing laws: Provided, the same shall have been acknowledged by the grantor or grantors, maker or makers, before any chief justice of the county court, or before any notary public, or before the clerk of the county court in whose office such record is proposed to be made, or proved before such officer by one or more of the subscribing .witnesses, and certified by such officer; any obscurity or conflict in the existing laws, to the contrary notwithstanding.”
There are a number of curative statutes passed subsequent to the act of 1841, but their application to the question in hand is doubtful and we will not refer to them. It is to be observed that the act of 1841 in terms appears to apply only to such instruments as “shall have been heretofore registered.” That act came up for consideration in the case of Butler v. Dunagan, 19 Tex. 559 , and the court, speaking through Judge Wheeler, held:
“If it had been recorded upon that acknowledgment, before the act of 1841, it would' have come clearly within the provision of the twentieth section of the act. Hart. Dig. art. 2776. In terms, the twenty-first section applies to instruments thereafter to be made and recorded; hut we do not think a literal construction would give effect to the act according to its spirit and intention. If; when presented for record, the deed had been duly acknowledged before *613 the proper officer, it could make no difference whether the acknowledgment was made before or after the passage of the act. If acknowledged before, it could not have been intended that the acknowledgment should be again repeated. The act was intended to remove objections to the sufficiency of the registry of deeds, upon such acknowledgments, and to provide for their, recording in future. It was a healing and enabling statute, and ought to be construed liberally. To exclude this instrument from its operation, because acknowledged before its passage, where, if before recorded upon the same acknowledgment, it would have been within its operation, would be an extremely narrow and strict construction, and such an one as, in, our opinion, would not be in harmony with the legislative intention, and the manifest spirit and intention of the law. We think, therefore, the instrument was sufficiently authenticated to admit it to record.”
That holding was approved in Waters v. Spofiford, 58 Tex. 115 , and made the basis for the decision reached. The holding in Butler v. Dunagan was questioned by the Court of Civil Appeals in McCelvey v. Cryer, 8 Tex. Civ. App. 437 , 28 S. W. 691 , but the question was not necessary to the decision of the case. We have found no decision by the Supreme Court which questions the holding in Butler v. Dunagan, but on the contrary there are a number of cases construing other curative statutes which approve the doctrine of liberality of construction therein laid down. Land Co. v. Williams, 48 Tex. 606 ; Pasture Co. v. Preston, 65 Tex. 458 ; Baker v. Westcott, 73 Tex. 131 , 11 S. W. 157 .
Section 5 of the Act of February 5, 1840, was intended to apply, we think, to instruments theretofore as well as thereafter acknowledged. That act would no doubt be sufficient as a validating act for the instrument in question were it not for the fact that it uses the expression “notary public of a county.” One might plausibly urge that this expression was meant to apply only to notaries public of counties in the Republic of Texas; and it may be that this is the proper construction to give to the language; although it might also be urged with 'much force that, since it was quite common at the time the act was passed for conveyances of Texas realty to be executed before notaries in Louisiana, the act was intended to validate all such notarial acts.
The act of 1840 aside, we think it quite clear that, unde^- the construction given in Butler v. Dunagan to the act of 1841, the acknowledgment of a deed theretofore taken before a notary public within or without the Republic was authorized to be admitted to record. The act in express terms validates all previous records of such instruments and, unless restricted to its literal interpretation, it applies with equal force to such instruments theretofore executed and acknowledged, but not up to that time placed of, record. Any other holding would be a marked departure from the spirit of liberality evidenced in the attempts to validate all technical deviations from the letter of the law in the acknowledgment and record of instruments executed in early times, as ex-’ pressed both in legislative enactments and in the construction of those enactments by the Supreme Court.
If the original instrument was entitled to record, then it clearly follows under the holding in our original opinion that a certified copy from the notarial records of Louisiana duly authenticated as required by federal statute, would also be entitled to record, and, if entitled to record, it was admissible in evidence without proof of the original.
We have given careful consideration to the other grounds for the motion, and have reached the conclusion that they are all properly disposed of in our original opinion.
We conclude that the motion for rehearing should be overruled.
CURETON, C. J.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
We approve the holding of the Commission of Appeals on the question discussed in its opinion.