
    William Primm v. John Stewart and James Stewart.
    The ninetieth section of the act of 1846 to regulate proceedings in the District Courts is applicable only in case it is proposed to contest the genuineness of the instrument, and to require the party to prove its execution.
    The admissibility of hearsay evidence of the fact of death is notconfined to cases of pedigree; it is doubtful, however, whether the hearsay testimony in this case, if it stood alo.ne, would be competent.
    The absence of a person, beyond sea or elsewhere, for seven years successively, without being heard of, authorizes the presumption that hens dead.
    A. power of attorney not coupled with an interest is revoked by the death of the principal.
    Appeal from Bastrop. This suit was brought on the 13th day of January, 1840, by the appellees, to recover of Thomas'W. Cox, the defendant below, a tract of land. The appellant Primm intervened, claiming title to a portion of the land in controversy. As a part of his claim of title, lie gave in evidence a power of attorney given by John C. Williams to Edwin Waller, dated on the 24th day of February, 1S8S, and a deed executed by Waller, under this power of attorney, to Willis on the 17th clay of May. 1849. The former was a general power of attorney, authorizing and empowering the attorney to transact all the business of the principal, of whatever natnre, in the Republic of Texas; to sell and convey and to lease his lands, adjust ancl settle his accounts, collect his debts, lake charge of his effects, and to take control of and manage all his affairs and interests in the Republic. The deed-executed by the attorney under this power purported to be given to supply the place of one given for tiie same piece of land executed on tiie 20th clay of September, 1838, ancl recorded in Bastrop county on the 12th day of March, 1849, which was defective.
    To impeach the validity of this deed, the plaintiff introduced a witness who testified that he became acquainted with a man of tiie name of Williams, in New Orleans, in 1839, who had had extensive dealings in lands in Texas with D. C. Barrett, of Texas; that be had never seen Wiliiams since 1839, and that, from information and general report, lie (Williams) liad been dead for six or seven years. Another ‘witness, introduced by the plaintiff, testified that lie lenew Williams in Brazoria county, where lie formerly resided, uear the residence of Edwin Waller; that lie was present, in 1837 or 1838, when 'D. C. Barrett executed to said Williams a deed to a tract of land; that lie had not seen nor heard from Williams since 1830, except from general rumor and report that lie died seven or -eight years ago; witness formerly resided in Brazoria county, ancl had been there several times since lie removed from that county. One of tiie mesne conveyances under which the intervenor claimed was'a deed from D. C. Barrett to Williams, dated July 12, 1S37.
    There was in the record a bill of exceptions, from which it appeared that “ the plaintiff offered to prove that tiie said Williams was dead at the time said deed was executed by said Waller, to which the intervenor Primm objected, but his objection was overruled,” ancl he excepted. There was a verdict ancl judgment for the plaintiff, and the intervenor appealed.
    
      Sayles, for appellant.
    I. By art. 745, Hart. Dig., it is provided that deeds which have been duly recorded may be read in evidence without proof of execution, upon their being-filed for three days among tiie papers of the cause, unless the opposite party shall file an affidavit that the instrument is forged. These provisions of the statute had been complied with, and the instrument constituted full proof so far as the execution was concerned; it was the deed of Williams, not of Waller; the plaintiff, by the pleadings and notice, was apprised that it would be relied upon as such, and an affidavit was necessary to lay the foundation for proof of the character introduced.
    II. The evidence introduced was wholly incompetent for that purpose; it was hearsay testimony, ancl that of the most indefinite character. Hearsay testimony is competent to prove deaths only when it is a question of pedigree'; and, even for that purpose, is received under great restrictions. In this ease tiie deatii of Williams was an important fact, which was capable of positive proof. Neither of the witnesses were acquainted with him: neither knew his given name; neither lived in his neighborhood; and neither know when or whore or from whom he heard the report of his death; yet this testimony was permitted to go to the jury ancl was undoubtedly regarded as conclusive by them. In the case of Dudley e. Grayson,,(G Mon. R., 2G2,) it was held that the statement of a witness that lie liad heard that a person was dead was insufficient. And from an examination of adjudicated cases, it will be found that hearsay testimony is only admissible when the death is a question of pedigree, and when, from the circumstances of the case, it is the best evidence that can be produced.
    
      Webb %• Oldham;, for appellees.
    I. The District Court properly admitted the evidence offered by the plaintiffs below to prove the death of Williams before the execution of the deed by Waller, under the power of attorney from Williams to him, to Willis. The objection taken, as shown by the bill of exceptions, was not to the character of the evidence offered, but was to the rig-lit of the plaintiffs to prove the fact. (1 Cow. & Hill’s Notes to P. E., C14.) ‘The death of Williams revoked his power of attorney to Waller.
   WhbeleR, J.

The first objection to the admissibility of the evidence, that is. the absence of an affidavit that the deed was forged, clearly is not tenable. The statute is applicable only in case it is proposed'to contest the genuineness of the instrument, and to require the party to prove its execution. But here the genuineness of the instrument was not contested. Its execution was not in question. But it was proposed to impeach its validity by evidence going-alone to the question of the authority of the party to make it. This it certainly was competent to do.

AVas the evidence offered, being hearsay, admissible to prove the fact which it was proposed to prove : that is, the death of Williams? In the learned notes to Philips’s Evidence, (Cow. & Hill’s N., 181,) many cases are cited where hearsay has been received to prove the fact of death. Such evidence appears to liave been received with less hesitancy where the deceased resided abroad, in a foreign jurisdiction. The fact of such residence abroad seems to have been sometimes considered as a ground for the admission of the evidence. (Ib.)

Evidence of hearsay to prove the fact of death appears to have been received in many of the American courts to whose opinions we are accustomed to pay the greatest deference, and, we think, with reason. Por, as has been said, that a person lias been missing at a particular time, accompanied with a report and general belief of his death, must be, in many cases, not only the best but the'oulv evidence which can be supposed to exist of liis death. (Id.; 15 J. E., 226; 5 Cow. B., 319.) - -

In the Supreme Court of the United States it was hold, in the case of Scott’s Lessee v. Ratcliffe, (5 Pet. R., 81,) that the testimony of a witness, that, in 1811, she, being in the cits'- where the deceased had resided, was there told that he was dead, without saying by whom she was told, was admissible to prove his death — Chief Justice Marshall saying, that the judges were all of the opinion that so much of the testimony of the witness as went to prove the death was admissible; though there was some diversity of opinion on another point. (Id., 86.)

Nor is the admissibility of such evidence confined, as has been insisted, to cases where the question is one of pedigree. It seems to have been allowed irrespective of that question, and iu oases where the inquiry was entirely abstracted from any question of pedigree. (1 Cow. & H's Notes to Phil. Ev., n. 173, 181.)

If, in tiie present case, the testimony of the two witnesses who were called to prove the death of AVilliams, stood alone, unsupported by other circumstances, we should doubt its competency to prove that fact. But when taken in connection with the facts in evidence when it was offered, we think it was admissible. The terms employed and subjects embraced in the power of attorney made by AVilliams in 1838 render it probable that it was made in contemplation of his going abroad. No witness testified to his having been in this country since that period, though he formerly lived in Brazoria county, where the power of attorney was executed. The deed executed by Waller, as his attorney iu fact, was'made afte*- the commencement of this suit; and, from its date, and reference to a former defective deed between the same parties for the same land, said to have been made more than ten years before, autl then lately recorded, there, can be little doubt that it was made in reference to the suit then pending. And if Williams had been in the country, or living within the knowledge of the party for whose benefit the deed was procured, it is quite probable that a resort would have been had to him, rather than to this old power of attorney, given more than eleven years before. After so great a lapse of time from its execution, and such changes in the affairs of this country, there must be much reason to believe that the power of attorney had long since accomplished all the purposes for which it had been given, and liad been revoked, either by the act of the party or by the operation of law. The circumstances under which the evidence was offered rendered its admission proper, if they did not even justify the conclusion sought to be established, without it. That Williams had been absent from the country for many years seems to admit of little doubt; and he does not appear to have been heard of for more than seven years, except that he had died. Such an absence, without having been heard of, would authorize the presumption that he was dead. (Yates v. Houston, 3 Tex. R., 433; Hart. Dig., art. 238G.)

The evidence was, we think, under the circumstances, admissible, and at least prima facie sufficient to establish the fact which it was proposed to prove.

We have considered the question, taking the objection most favorably to the party making it, as going to the admissibility of the evidence offered. The bill of exceptions, however, is so framed as to leave it doubtful whether the objection went to the admissibility of the evidence or to the materiality of the fact proposed to be proved. If the latter only, it has not been so treated in the argument for the appellant. Hor will it admit of a question that the death of the principal was a material fact, and that it operated a complete revocation of the power of attorney. A power of attorv ey, not coupled with au interest, is revoked by the death of the principal, (Story on Agency, secs. 48S, 4S9; 2 Kent’s Comm., 445.)

We are of opinion that there is no error in the judgment, and that it.be affirmed.

Judgment affirmed.  