* and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ The statements made by affiants that they were competent to testify to the matters stated are nothing more than conclusions of affiants. There must be something in the affidavits to show affirmatively what makes the affiant competent to testify. A reading of the affidavits makes it obvious that the statements are not so worded that if given on the witness stand they would be admissible in evidence. The affidavits would not be admissible without showing as to how affiants could possibly have such knowledge except by hearsay. Tobin v. Garcia, supra; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962); Heien v. Grabtree, 364 S.W.2d 271 (Tex.Civ.App.--Amarillo, 1962, affirmed 369 S.W.2d 28). Murfee v. Oquin , 423 S.W.2d 172, 174 (Tex.Civ.App. —Amarillo 1967) Summary Judgment An affidavit must affirmatively show how the affiant became personally familiar with the facts so as to testify as a witness, and a self- serving recitation of such does not satisfy the requirement. Villacana v. Campbell, 929 S.W.2d 69, 74 (Tex.App.--Corpus Christi 1996, writ denied) Goggin v. Grimes, 969 S.W.2d 135, 138 (Tex.App. —Houston [14 Dist.] 1998) Summary Judgment The establishment of competency is a function of the facts being recited, the actual knowledge of the affiant, how that knowledge came into the possession of the affiant and ultimately, whether the knowledge qualifies the affiant to state the facts/conclusions. For example, A is claiming fee simple title to Blackacre. An affiant gives an affidavit detailing the adverse possession of Blackacre. The affiant makes the following statements of “fact”:
metes and bounds description of the land as found in instrument dated July 1, 1963 by and between John Jones, Grantor and A, Grantee (DR 235/714).” Statement No. 2 - “There were no other claimants to Blackacre claiming an interest therein from and after 1963.”
Statement No. 2 - “The possession of A was adverse as against the world.”
The true facts are as follows:
The fence does not follow the fence line (from a plat prepared by a surveyor showing the discrepancies) John Jones had two siblings. Each inherited an undivided 1/3 interest in Blackacre per probated will. Each is claiming an undivided 1/3 interest. A admitted to other neighbors in the past that he was farming Blackacre with John Jones siblings’ permission.
Who is the affiant? How did he/she come into possession of the “facts” found in the affidavit? As will be seen later in the article, the affiant was not a family member (this is good). He/she had no interest in the outcome of the litigation whereby A is attempting to claim title to Blackacre by adverse possession. Unfortunately, the affiant also had no first hand knowledge of the family history of A’s grantor, John Jones. The affiant had no knowledge of location of the fence relative to the actual metes and bounds description of Blackacre and was too young to have ever talked with any of John Jones’ neighbors. The true affiant - the examining attorney OR the field/in-house landman OR a title company representative. If an affidavit is to be relied on for title purposes, it simply must be based on facts personally ascertained by the affiant. Otherwise, as
Statement No. 1 - “Blackacre was fenced by A, said fence following the
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G r o w t h T h r o u g h E d u c a t i o n - A p r i l / M a y / J u n e 2 0 2 1
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