Briggs v. Henderson

• Decision Date: 31 March 1872
• Parties: DAVIDELLA BRIGGS et al., Plaintiffs in Error, v. JOHN B. HENDERSON et al., Defendants in Error.
• Court: Missouri Supreme Court

49 Mo. 531

DAVIDELLA BRIGGS et al., Plaintiffs in Error,

v.JOHN B. HENDERSON et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1872.

Error to Audrain Circuit Court.

Dwyer & Musick, for plaintiffs in error.

I. The deed from Herrick to Fyler not having been properly acknowledged or proved, the act of the officer in recording it was without warrant of law, and the record was of no validity whatever; it amounted to no more than any other copy of the deed by any other person. (Caldwell v. Head, 17 Mo. 362; Garnier v. Barry, 28 Mo. 438; Pattison v. Fagin et al., 38 Mo. 71-4; Phil. Ev. 458; Kerns v. Swope, 2 Watts, 75; Pyle v. Moulding, 7 J. J. Marsh. 202; Garrison v. Hayden, 1 J. J. Marsh. 222.) “A paper purporting to be the record of a deed, and not duly acknowledged, is inadmissible, either as a record or as a copy of a deed.” (Doe v. Roe, 1 Johns. 402.) It was not admissible under section 40, chapter 143, Gen. Stat. 1865 (see Garnier v. Barry, 28 Mo. 449), nor under the act of 1847 (Sess. Acts 1847, p. 95, § 8; Sess. Acts 1868, p. 51; Wagn. Stat. 595, §§ 35, 36.) That statute has reference to proof of notice only. It was not offered as an ancient deed, and therefore cannot be considered as having been admitted as such. (Allen v. Moss, 27 Mo. 362.) Nor would the original deed have been admissible as an ancient deed. (1 Stark. Ev. 66-7; 1 Greenl. Ev., §§ 21, 142-4, 570.)

II. The exhibits attached to the depositions should have been excluded. The record itself was but a copy of the deed, and the exhibits were copies of a copy, and as such were not admissible in evidence. (Doe v. Roe, supra; Gilb. Ev. 9; 2 Phil. Ev. 239.) But copies of such records are expressly excluded by the statutes of this State until the execution of the deed has been proven. (Sess. Acts 1868, p. 51; Wagn. Stat. 595, §§ 35-6.)

H. C. Hayden, for defendants in error.

The Circuit Court committed no error in admitting the sworn record copy of the deed from Herrick to Fyler. It was not presumed that the original was in the possession of the defendants. The deed was more than thirty years old, and without subscribing witnesses. The justice of the peace and all other parties, grantors and grantees, were all dead, and diligent search had been made for the original. The next best evidence was the record copy, written down by Joel Haynes, the clerk, from the original. The fact that the deed was definitely acknowledged has no bearing on this question of proof. (9 Pet. 663, 673; 2 Phil. Ev. 582-3; 3 Ham., Ohio, 111, 583 and note; Barton v. Murrain, 27 Mo. 235; 45 Mo. 375; 5 Mo. 291; 1 Greenl. Ev., § 84; id. 575; 12 Shep. 249; 5 Pet. 318; 11 Price, 475, 489, 492.)

BLISS, Judge, delivered the opinion of the court.

The adverse claims of both parties arise from the same deeds, which were the foundation of the several claims in Musick v. Barney, 49 Mo. 458. In the present case Fike, who purchased the interest of Herrick in sundry tracts of land, conveyed the land in controversy to John J. Ely, his son-in-law, as a gift, and most of the plaintiffs are the heirs of Ely. The defendants, as in Musick v. Barney, hold through the lost deed from Herrick to Jared D. Fyler, executed March 7, 1837, which embraced several tracts of land in the counties of Pike, Audrain and Ralls, which was acknowledged before a justice of the peace of Pike county, where Herrick then resided, and was recorded in that and in each of the other counties. The law at that time required acknowledgments to be made before magistrates of the county in which the land is situated; hence, as to the land in controversy, it was improperly acknowledged, and its record was not provided for by law.

Upon the trial the court admitted in evidence, on behalf of defendants and against the plaintiffs' objections, a certified copy of this record, but before its admission the loss of the original was proved, and the recorder of deeds of Audrain county, in 1837, still living, testified that the record was made by him; that it was made from the original deed, and carefully compared; that from several circumstances named by him, he distinctly remembers the original deed, and the fact that he copied it upon the records, and heis certain that he made a correct copy. The original record was also offered in evidence, which corresponded with the copy. Other witnesses testify to the relations of Herrick and Fyler, showing that the former was largely indebted to the latter and others, and speak, though with less certainty, of having seen at the time a deed from Herrick to Fyler, and think the copy exhibited was a copy of the same, and speak of the general understanding in regard to the sale. It was also shown that all the persons named in the deed, and others likely to know specifically of its execution, are dead; and it was not disputed that the copy produced was a correct transcript from the record. The objection to this evidence was: first, because the execution of the original instrument was not proved; and, second, because it was a copy of a copy.

If there is no evidence tending to prove the execution of an instrument offered in evidence it should be withheld from the jury; but if competent evidence is submitted, and the best the nature of the case admits of, the court may not judge of its sufficiency, but the paper should go to the jury under proper instructions. And so with a lost instrument; the establishment of the loss will not dispense with the proof in this regard demanded in behalf of the original, otherwise a broad door would be opened for fraud. But there are degrees of evidence, and impossibilities are not required. The best in the power of the party should be given; but when it is shown that primary evidence is impossible, then secondary is admissible, and down to the lowest degree of secondary evidence. Thus, in the case at bar, the best evidence would have been the production of the original deed, with proof of the handwriting of the grantor and by the subscribing witnesses, had there been any. Had it been properly acknowledged and recorded, the best secondary evidence would be a certified transcript under the statute. Not being so acknowledged as to the land now in...