Buck v. Gage
| Decision Date | 17 September 1889 |
| Parties | BUCK v. GAGE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Under the provisions of section 13 of chapter 73 of the Compiled Statutes of 1887 the record of a deed duly recorded, or a transcript thereof duly certified, may be read in evidence, with like force and effect as the original deed, whenever, by the party's oath or otherwise, the original is known to be lost, or not belonging to the party seeking to use it, or within his control, and therefore, in an action in ejectment, where the defendant seeks to prove title in a stranger as a defense, and it sufficiently appears that the original deed does not belong to him, a copy of the record will be competent evidence in the first instance, without proof of the loss of the original, or that it is not under the control of the party seeking to use it.
2. In an action in ejectment plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of that of the defendant in possession.
3. The certificate of acknowledgment, as shown by the record of a deed, was dated on the 16th day of August, 1872, while the deed itself bore date of the 16th day of October of the same year. It was held that the date of the certificate of acknowledgment would prevail over that of the deed, and that the district court did not err in admitting a copy of the record in evidence when objected to on account of the discrepancy in dates.
Error to district court, Franklin county; GASLIN, Judge.H. Whitmore and Case & McNerry, for plaintiff in error.
E. A. Fletcher, for defendant in error.
This action was instituted in the district court of Franklin county, and was in ejectment for the possession of the W. 1/2 of the S. W. 1/4 of section 31, township 2 N., range 14 W., in that county. The petition was in the usual form. The answer denied plaintiff's estate in the land, and denied his right of possession. The cause was tried to the court without the intervention of a jury, and resulted in a finding that plaintiff did not have the legal title to the property, and was not entitled to the possession thereof, and in a judgment in favor of defendant. Plaintiff filed his motion for a new trial, alleging as grounds therefor--“ First, the verdict is not sustained by sufficient evidence; second, the verdict is contrary to law; third, errors of law occurring at the trial, and excepted to by plaintiff at the time.” This motion being overruled, plaintiff brings the cause to this court by proceedings in error.
It appears from the record that the land was patented by the United States to E. A. Kirkpatrick, and that, on the 15th day of August, 1872, he sold and conveyed it by warranty deed to J. T. Roberts, for the consideration of $400; and that, on the 1st day of October of the same year, Roberts, for the consideration of $500, sold and conveyed by warranty deed to the Franklin Town Company. Subsequent to Kirkpatrick's conveyance to Roberts, and on the 17th day of July, 1883, Kirkpatrick, by a quitclaim deed, for consideration of $50, conveyed the land to plaintiff; and on the next day, for a consideration of $20, Roberts made a similar conveyance to plaintiff. The original deeds were not introduced in evidence, copies of the deed record being used. Those introduced by plaintiff were received without objection. Those introduced by defendant were objected to on the ground that no sufficient foundation had been laid for their introduction, there being no proof of the loss of the original deed, nor that they were not in the possession of the defendant. This objection was overruled, and the ruling of the district court is now assigned for error.
Section 13 of chapter 73 of the Compiled Statutes of 1887 is in part as follows: “The record of a deed duly recorded, or a transcript thereof duly certified, may also be read in evidence, with the like force and effect as the original deed, whenever, by the party's own oath, or otherwise, the original is known to be lost, or not belonging to the party wishing to use the same, nor within his control.” In Delaney v. Errickson, 10 Neb. 500, where the deed to the grantor of the party wishing to use the record included a large number of descriptions of real estate in addition to that claimed by the party seeking to use the record, it was held that the...
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