Addis v. Graham

• Decision Date: 31 October 1885
• Citation: 88 Mo. 197
• Parties: ADDIS et al. v. GRAHAM et al., Appellants.
• Court: Missouri Supreme Court

88 Mo. 197

ADDIS et al.

v.GRAHAM et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Barton Circuit Court.--HON. C. G. BURTON, Judge.

AFFIRMED.

Robinson & Harkless for appellants.

(1) The court erred in permitting the old leaf, its photograph and the transcribed record to be introduced in evidence. Chauvin v. Wagner, 18 Mo. 531; Tome v. Parkersburg Ry., 39 Md. 36. (2) The court erred in admitting in evidence the transcribed record of the deed from Wamsley to Bennett. A deed defectively acknowledged cannot be read in evidence until there is some proof that a deed once existed. R. S., sec. 679; Harden v. Lee, 51 Mo. 241; Atwell v. Lynch, 39 Mo. 519; Hamshire v. Floyd, 39 Tex. 103. (3) The court should have excluded the depositions of Mrs. Owens, of Parks, Boone and Brummett. These depositions attempted to show that the administrator of Wamsley did not have the deed in his possession without evidence first tending to show that a deed ever existed. (4) The court should not have left to the jury the legal effect of the deeds. Hunt v. Railroad, 75 Mo. 252; Bailey v. Ormsby, 3 Mo. 580; Hickey v. Ryan, 15 Mo. 63; Cape Girardeau v. Harbinson, 58 Mo. 90; Wiser v. Chesley, 53 Mo. 547.

Buler & Timmonds for respondents.

(1) The only real question in this case was, “did the defendant, Pinson, in 1859, execute a deed conveying the land in controversy to Alexis Wamsley?” The depositions of Florence K. and William Addis are sufficient to authorize the introduction of a record of such deed. 1 R. S., 1879, sec. 697; Barton v. Murian, 27 Mo. 235; Boyce's Trustees v. Mooney, 40 Mo. 104. (2) The old leaf, of which a photograph is attached to the transcript, is shown by the testimony of the recorder of deeds to be part of the original record book B, he being the legal custodian of the record and as such it was properly admissible in evidence. R. S., sec. 697, supra; Odiorne v. Bacon, 6 Cush. 185; Miller v. Hale, 26 Pa. St. 432; Gray v. Davis, 27 Conn. 447. (3) The fact that it has been injured and defaced by decay or other causes for which plaintiffs are not responsible, does not invalidate it as evidence so far as it can be deciphered. 1 Greenleaf's Evidence (Redf. Ed.) sec. 565; Woods v. Hildebrand, 46 Mo. 284; Donaldson v. Williamson, 50 Mo. 407. (4) The book identified by the testimony of the recorder of deeds as book B of transcribed records, is made by the special act of the legislature prima facie evidence of what the original deed record B contained. Act 1883, 130. That act is a constitutional and proper exercise of legislative authority. Cooley's Const. Lim. (4 Ed.) marginal pages 457 to 460; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483. (5) The record having been properly admitted to show that Pinson did convey a lot of land in Barton county to Wamsley, and appearing on its face to be so defaced and decayed that a part of the description of the land therein conveyed had become illegible the question as to whether the identical land in controversy was included in the description of the land conveyed, was one to be determined from other evidence, and all the facts and circumstances in the case, and was properly left to the jury. Hunt v. Mo. Pacific Ry., 75 Mo. 252; Slayback v. Gerkhart, 1 Mo. App. 333.

BLACK, J.

This action of ejectment was commenced in 1882. In 1857, Pinson entered some four sections of land in Barton county and received patents therefor. The eighty acre tract in question is a part thereof. Plaintiffs claim title by virtue of a deed from Pinson and wife to Wamsley made on first of February, 1859, conveying these Barton county lands, and a deed from Wamsley to Brummett dated November 2, 1860; they also claim through six or seven other deeds about which no question is made here. Mr. Burkhart testified that he had been in the recorder's office of that county since 1868; that the deeds filed in 1859 and 1860 were recorded in books B and C; that those books were mutilated and to a great extent destroyed during the late war; that such portions as were legible had been transcribed; and that the original books were in a better condition when copied than at the time of trial, in 1883. Plaintiff then read in evidence from a mutilated leaf such portions of a deed as could be deciphered. This showed a deed from A. L. Pinson and wife to Alexis Wamsley to lands in Barton county, formal in all respects, to and including the description of several parcels of land, but not the one in question, then only a few words here and there could be made out, showing, however, further words of description. The transcribed record was also read, which is substantially the same, save that a few more words are made to appear. The transcribed record of the deed from Wamsley to Brummett was also read, which is full and formal in all respects save that hereafter noticed, and included the property in question. Numerous objections were made and exceptions saved to the evidence received by the court.

1. The act of March 30, 1883 (Laws 1883, p. 130), provides that these transcribed records “shall be entitled to the same faith and credit that the original records * * * were entitled to” and “shall be received in all courts of this state as prima facie evidence of the contents of the original deed records.” We do not understand it to be insisted here that this law is unconstitutional, as it was below. Let it be conceded that these transcribed records stand upon the same footing as the original books of record and that they are evidence only of what appears upon their face.

2. These records do not show in either case the seal of the officer taking the acknowledgment; nor is there any note of the place where the seal was placed. The recorder is not required to copy the seal of the officer who took the acknowledgment. It is sufficient if the officer states in the body of the acknowledgment that he affixed the seal of his office. This authorizes the presumption that the seal was affixed. Geary v. City of Kansas, 61 Mo. 379; Norfleet v. Russell, 64 Mo. 177. This statement is clearly made in the body of the acknowledgment in the one case and we think it sufficiently appears in the other.

3. It is further contended that these acknowledgments were insufficient to entitle the deeds to be recorded at all, and hence the records should have been excluded. The acknowledgment to the deed to Wamsley, as shown by the transcribed record, purports to have been taken before the clerk of the county court of Henry county, in which Pinson, the grantor, resided at the time. It is a formal acknowledgment to and including the statement that the wife relinquished her dower when it proceeds: ...