an instrument alphabetically: Direct and Reverse Indexes. § 193.003. Index to Real Property Records, Local Government Code. The Direct Index is filed on the basis of grantor/mortgagor’s last name and the Reverse Index is filed on the basis of grantee/ mortgagee’s last name. In the case of affidavits relating to real property, unless the affiant (grantor) is somehow related to and has the same last name as one of the owners of the real property in the chain of title, the instrument will not be found in the chain of title to that particular tract of land unless all instruments filed under “Public” (or some similar nomenclature - different county clerks have different terminology such as General Public where the key word is General) are examined to see if they pertain to the lands under examination. This can be more than a daunting task, both from a sheer number of instruments to review as well as whether the examiner has located all catch- all words used by county clerks over time in that county as synonyms for “Public”. All that being said, the filing of the document, even if indexed properly but very hard to find, will be constructive notice of its contents to third parties in the chain of title. Sanchez v. Telles, 960 S.W.2d 762 (Tex.App. —El Paso 1997) Summary Judgment C. Use of Affidavit in Litigation - Case law analysis of construction of affidavits The validity/invalidity of a particular affidavit, depending on the circumstances under which the relying party is attempting to use same (admission into evidence; basis for summary judgment; reliance upon for title purposes etc), very often turns on the use of “magic words”, the absence of which can lead to less than a desirable result. The following is a discussion of a sampling of Texas case law on various clauses and phrases as well as legal issues which arise from the use or lack of certain “magic words” in affidavits. The rules of evidence and admissibility of affidavits are numerous and varied. What the author has tried to do is summarize the major flaws in affidavit drafting which could lead directly to the inadmissibility of any affidavit in a subsequent title suit. Stated another way - Why take what will be an inadmissible affidavit when,
with a little work and forethought, a “title curative affidavit” can stand in futuro as an admissible affidavit in a litigation setting if and when needed. 1. “Personal knowledge” -- “True and correct” (“Magic Words”) The failure to use the term as found in the sample affidavit form (“personally within knowledge of affiant”) is, in a trial setting, a defect in form that must be objected to and the objection preserved for appeal if the affidavit sought to be admitted into evidence is objected to by the opposing side. Failure to object to the affidavit’s admission for use of the words “on information and belief”, “verily believes” etc. and the admission of the affidavit into evidence without such objection will cause the objection to be waived. Choctaw Properties, L.L.C. v. Aledo I.S.D. , 127 S.W.3d 235 (Tex.App.—Waco 2003) Summary Judgment See also Rizkallah v. Conner, 952 S.W.2d 580, 585 (Tex. App. —Houston [1 Dist.] 1997) Summary Judgment Perhaps the author’s categorization of certain words as “magic words” is too simplistic. Witness the Texas courts’ wresting with the use of certain phrases: The affiant must “positively and unqualifiedly represent the ‘facts’ . . . disclosed in the affidavit to be true and within his personal knowledge.” Brownlee, 665 S.W.2d at 112. [2] Even though Tex. R. Civ. P. 145 contains specific language to be used in affidavits, the cases cited above have not held that those magic words are the keystone of this review, but instead appraise whether the affirmation is such as to show that the statements are based on the affiant’s personal knowledge and whether the statement is so positive as to allow perjury to lie. Teixeira v. Hall , 107 S.W.3d 805, 809 (Tex.App.—Texarkana 2003) (emphasis added) Dismissal of suit In the context of a summary judgment affidavit, courts have uniformly held that affidavits which are based on the affiant’s best knowledge and belief do not meet the
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N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s
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