Bergman v. Bullitt

• Decision Date: 10 May 1890
• Parties: GEORGE W. BERGMAN v. SALLIE P. BULLITT et al
• Court: Kansas Supreme Court

23 P. 938

43 Kan. 709

GEORGE W. BERGMAN v. SALLIE P. BULLITT et al

Supreme Court of Kansas

May 10, 1890

Error from Butler District Court.

EJECTMENT. Judgment for plaintiffs, at the October term, 1887. The defendant, Bergman, brings the case to this court. The material facts appear in the opinion.

Judgment reversed and cause remanded.

Hallowell & Hume, for plaintiff in error.

J. V Daugherty, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The heirs of H. M. Bullitt, deceased, instituted an action in ejectment against George W. Bergman to recover possession of a part of a lot in Wichita. In an answer and cross-petition, Bergman denied the plaintiffs' right of recovery and alleged title in himself, which he asked to have quieted. The case was tried by the court without the intervention of a jury, and a judgment was given in favor of the plaintiffs, which the defendant alleges is erroneous and should be reversed. The plaintiffs below relied on a title derived from the general government through various mesne conveyances to H. M. Bullitt, deceased, and to support their action they offered in evidence duly-certified copies of the United States patent and other conveyances in the chain of title. These were certified to be correct copies of the originals that were recorded in the office of the register of deeds. It is contended that there was error in the admission of the copies, for the reason that sufficient proof had not been offered of the loss or destruction of the originals to warrant the admission of secondary evidence of such instruments. These, being copies of instruments authorized to be recorded in a public office and which were recorded in the office of the register of deeds, were admissible in evidence upon proof that the original instruments were not in the possession and control of the party desiring to use the same. Proof that the originals were lost or destroyed was not essential to the admission of the copies. (Civil Code, § 372; Gen. Stat. of 1889, P 1136; Williams v. Hill, 16 Kan. 23; Pfefferle v. The State, 39 id. 128.) There was evidence tending to show that the originals were not in the possession or under the control of the plaintiffs, and it showed beyond controversy that they were not under the control of Julia Bullitt, one of the plaintiffs. She testified that she and her mother had the custody of all the papers of her deceased father, Dr. Bullitt, and that the instruments of which record copies were offered were not among his papers or effects. She stated that she had control of them equally with her mother, and had frequently examined them, but that the originals could not be found; and further, that she was in a position to know that the other plaintiffs did not have them in their control or possession. There was certainly sufficient proof to show that the originals were not under the control of this plaintiff, and hence they were admissible as to her. Even if it should be conceded that no sufficient showing had been made that the other plaintiffs did not have the control of the originals, there would still be no available error, as no sufficient objection was made to the testimony, nor any request to limit the application of the testimony to the party for whom it was unquestionably competent. It has been decided that a general objection to testimony as to one of several joint parties, but not as to another, is not sufficient. (Taylor v. Deverell, ante, p. 469.)

Bergman claimed title under a tax deed, which was assailed by the opposing parties upon the grounds, first, that there was no sufficient redemption notice; and, second, that the levy of taxes, for which the property in dispute was sold, was in excess of that allowed by law. It was conceded that no copy of any redemption notice for the property in question was then on file in the office of the county clerk; and for the purpose of showing that no such notice was given, there was offered in evidence a copy of a redemption notice, dated November 21, 1876, certified to by the county treasurer, reciting that certain tracts of land situated in Sedgwick county, which were sold in May, 1874, for the delinquent taxes and charges for the year 1873, would be conveyed on and after May 5, 1877, unless previously redeemed. The lot in question should have been embraced in the notice given at this time, but it did not appear in this certified copy. There was no publisher's affidavit attached to the certified copy, nor any statement showing that it had been published. The notice purports to have...