Whitman v. Giesing

• Citation: 123 S.W. 1052
• Parties: WHITMAN et al. v. GIESING et al.
• Decision Date: 23 December 1909
• Court: United States State Supreme Court of Missouri

123 S.W. 1052

WHITMAN et al. v. GIESING et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1909.

Rehearing Denied January 4, 1910.

1. EVIDENCE (§ 343)—RECORDS—ADMISSIBILITY.

A certified copy of an abstract of title, showing the contents of private books of the parties who made them, and which are not public records required by law to be kept, is inadmissible.

2. EVIDENCE (§ 383) — DOCUMENTARY EVIDENCE— EFFECT—TITLE.

A certified copy of an abstract of title is insufficient to show title in a suit to quiet title, where the original abstract disproves the copy.

3. PUBLIC LANDS (§ 61)—SWAMP LANDS— SALES.

One relying on the purchase of swamp lands must show, in addition to the certificate of purchase, payment of the consideration mentioned therein.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by T. P. Whitman and others against Benjamin Giesing and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded, with directions.

This suit was instituted in the circuit court of Pemiscot county by the plaintiffs against the defendants, under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to quiet title to section 31, township 20 north of range 12 east, situate in said county. The petition was in conventional form, and the answer contained, first, a general denial, and, second, a similar claim of title in themselves, and prayed that the title be ascertained and determined in their favor, as provided for by said statute.

At the request of counsel for defendants, the trial court made the following special finding of facts, and gave the following conclusions of law, viz. (formal parts omitted):

"The court finds from the evidence in this case: That the land in question, to wit, all of section 31, in township 20, in range 12 east, in Pemiscot county, Mo., was conveyed in 1850 to the state of Missouri, by an act of the Congress of the United States; that the same is swamp and overflowed lands as designated by said act of Congress; that the state of Missouri conveyed the same to Pemiscot county, Mo.; that on the 15th day of December, 1858, the said Pemiscot county by its certificate of purchase sold and conveyed to one Theodore P. Whitman said land; that the said Theodore P. Whitman paid said Pemiscot county for said land the sum of $773 and issued and delivered to the said Theodore P. Whitman a certificate of purchase for said land; that said section contains 718 acres. The court further finds that on the ____ day of August, 1874, the said Theodore P. Whitman departed this life, and left surviving him, as his only heirs at law, his children, plaintiff T. P. Whitman, A. T. Whitman, George Whitman, Maberry Whitman, Kate McClenden, Rachel Robertson, Mollie Sutton, and Fannie Stone, and as his grandchildren, Annie Bass and T. P. Randolph, daughter and son of his daughter Rebecca, deceased. The court further finds from the evidence in this case that said land was on the 4th day of June, 1882, sold for taxes, and that Sam Carleton became the purchaser at said tax sale, and that said judgment on its face recites that the judgment was rendered against said real estate, but does not show that any person was the defendant in said tax suit. The court further finds from the evidence in this case: That this suit was filed on the 6th day of July, 1904, and on the 15th day of July, 1904, process was duly served on the defendant; that thereafter, to wit, on the 10th day of June, 1905, the defendant procured from said Pemiscot county a patent purporting to convey to defendants said land; that at the time said patent was issued and delivered to the defendants they had notice and knowledge of the fact that said land had been previously sold to said Theodore P. Whitman, deceased, by said Pemiscot county, as aforesaid; and that said Theodore P. Whitman had paid said county for said land the sum of $773.

"The court further finds that there was passed by the Forty-First General Assembly of the state of Missouri the following law, approved March 28, 1901 [Laws 1901, p. 251], to wit: Section 1. A copy of an entry or entries from the abstracts known as `Carleton's Abstracts' relating to or affecting the titles to real estate in Pemiscot county, verified by the affidavit of the person or persons in whose lawful custody said abstract may be, that the same is a true and correct copy of the entry or entries, shall be received as prima facie evidence of the matter and entries therein contained in all courts and places within this state.

"The court further finds from the evidence in this case that notice of the intention to apply to the Legislature of the state of Missouri to have said law passed had been published in Pemiscot county, Mo., at least 30 days prior to the introduction into the General Assembly of this state such bill, and that said notice stated the substance of the said contemplated law, and that the evidence of such notice, having been published, was exhibited in the General Assembly before such act was passed, and that said notice is recited in said act according to its tenor, and that said notice was published in the manner required by law and the time required by law, to wit, that said notice of said intention to apply to the Legislature of the state of Missouri to have said law passed by said Legislature was published in the `Twice-a-Week Democrat,' a newspaper published in said Pemiscot county, where the matter and things to be effected were situate, in the `Twice-a-Week Democrat,' a newspaper published in said county, and that said notice was inserted in four separate publications of such newspaper, and that the first insertion thereof was at least 30 days prior to the introduction of said contemplated bill.

"The court further finds from the evidence that on the 2d day of December, 1882, the courthouse of Pemiscot county, Mo., was destroyed by fire, and all the deed records and other records of the recorder's office were in such fire.

"The court further finds from the evidence that said notice was signed by 10 householders of Pemiscot county, and that proof of the publication of said notice was made by the affidavits of the publishers of said newspaper, and to the said affidavit was attached a copy of said notice."

Conclusions of Law.

"Upon these facts the court finds that the law is for the plaintiffs, and that the plaintiffs are the owners in fee, and that the defendants have no right, title, and interest in and to said land, and that plaintiffs T. P. Whitman, A. T. Whitman, George Whitman, Maberry Whitman, Kate McClenden, Rachel Robertson, Fannie Stone, and Mollie Sutton are each entitled to an undivided one-ninth interest in and to said land in fee, and that plaintiffs T. P. Randolph and Annie Bass are each entitled to an undivided one-eighteenth interest in fee in and to said land, and that defendants have no right, title or interest in and to said land."

The court then rendered judgment accordingly for plaintiffs.

Practically all the findings of fact are conceded to be true, or rather not disputed, except counsel for defendants insist that there was no legal evidence introduced tending to show that Theodore P. Whitman, the ancestor of plaintiffs and through whom they claim title by inheritance, ever owned the land in controversy. The only evidence offered by plaintiffs tending to show Pemiscot county, which was the common source of title, ever conveyed the title to the land in controversy to said Whitman, was a certified copy of an alleged entry in Carleton's Abstracts, which counsel for plaintiffs insist was admissible in evidence under the authority of an act approved March 28, 1901, referred to by the court in the special findings of fact. Counsel for plaintiffs offered a certified copy of said entry, which reads as follows: "Pemiscot County to Theodore P. Whitman. Certificate of entry No. 1,153, dated December 15th, 1858. Filed in Register's Book No. 1, page 40. Consideration $773. Above certificate of entry conveys all of section 31, township 20, range 12 east. Certified as follows: (Certificate of Charles W. Shields read.) Signed and sworn to by Shields July 25th, 1905. John W. Green, Clerk of the Circuit Court." That offer was objected to by counsel for defendants for the reasons: That the entry offered in evidence is hearsay; and for the reason, second, that no authority of law has been shown making the entry, whether certified or not, evidence of land titles in any court in this state; third, because the paper offered and read by counsel as alleged evidence in this case is a private writing not made by any officer of any court in this state, and it is made and preserved merely by such private party for his own personal use and benefit, and because as yet no foundation of any kind whatever has been laid for offering the alleged abstract. Those objections were overruled, and the entry was admitted in evidence, to which ruling defendants duly excepted.

The defendants, in support of their claim of ownership to this land, offered a patent from Pemiscot county to the defendants Benjamin and Caroline Geising, dated June 19, 1905. This patent is regular, and conforms to the statute, and recites the full payment of $780 to Pemiscot county, Mo. The money was paid to the treasurer of that county.

For the purpose of disproving the correctness of the alleged "certified copy" of Carleton's Abstracts, offered by the plaintiffs, but limiting the probative effect of the offering to that purpose, the defendants offered in evidence the original page in Carleton's Abstract relating to section 31, township 20 north of range 12 east. And that this court may have before it the actual physical arrangement of or original page of the abstract with every word, line, letter, mark, figure, and character that is found upon it, we herein below set out a copy of that page with everything on it that is on the original. Moreover, we hereinbelow set out every...