Carpenter v. Dressler

• Decision Date: 29 July 1905
• Citation: 89 S.W. 89
• Parties: CARPENTER v. DRESSLER (two cases).
• Court: Arkansas Supreme Court

89 S.W. 89

CARPENTER v. DRESSLER (two cases).

Supreme Court of Arkansas.

July 29, 1905.

On Rehearing, September 30, 1905.

Appeal from Circuit Court, Arkansas County; George M. Chapline, Judge.

Two separate actions by one Carpenter against one Dressler. From judgments for defendant in each action, plaintiff appeals. Reversed.

H. A. & J. R. Parker and Carpenter & Ingram, for appellant. Lewis & Ingram and H. Coleman, for appellee.

HILL, C. J.

The issues in these cases are identical, and they will be treated for the purposes of the opinion as one case.

1. The first question for consideration is the effect to be given to a certified transcript from the office of the Land commissioner, when offered in evidence to prove a transfer therein shown. The statute (section 3064, Kirby's Dig.) only provides that, when properly certified, it shall be received in evidence of the existence of the records of which the transcript is a copy. It does not provide whether it shall be primary or secondary evidence, and the question here is whether such transcript can be received as original evidence to prove the issuance of a certificate or deed, without first accounting for the deed or certificate. In other words, does this statute make the record of the transaction required by law to be kept in the land office of the same grade of evidence as the certificate or deed issuing from the land office as a result of the transaction there recorded? One view to take of it is that the law requires a record to be had of the transaction, say a land sale, and as evidence of the consummation of that sale the deed is issued, and it is evidence, but not the only evidence, of the sale; for this record must precede the issuance of the deed, and the deed is based upon the transaction therein recorded. In this view the record and deed would be original evidence of equal grade, and this statute makes the certified transcript of the record equal to the record itself. This is the view taken, under closely analogous statutes, in Mississippi and Alabama. Boddie v. Pardee 74 Miss. 13, 20 South. 1; Wood-Stock Iron Co. v. Roberts, 87 Ala. 436, 6 South. 349. In Boynton v. Ashabranner, decided at this term and reported in 88 S. W. 566, this view prevailed. However, the question was not fully considered, as the court was then of opinion, as therein indicated, that Dawson v. Parham, 55 Ark. 286, 18 S. W. 48, had settled this question in this way. In the argument of this case, counsel pointed out the error of the court in misconceiving the scope of Dawson v. Parham. That case did not reach to this point, but to the effect of the certified transcript being of equal dignity to the record in the land office, and did not decide the effect of the record itself (or its copy made pursuant to the statute) as original evidence to prove the transfer, without accounting for the deed or certificate itself. The question arising again in this case, and in Covington v. Berry (this day decided) 88 S. W. 1005, has caused the court to re-examine the ruling in Boynton v. Ashabranner, as well as in the cases now at bar. The other view of the question is that the record in the land office is a public memorandum of the transaction, and that the primary evidence of the transaction is the deed or certificate issued by the Land Commissioner, and this public memorandum is only admissible evidence after the loss or destruction of, or inability of the party to produce, the original is shown, and then this public record (and by statute certified transcripts thereof) becomes the highest grade of secondary evidence to prove the transaction therein recorded. This subject is fully and exhaustively treated by Wigmore in his recent treatise on the Law of Evidence, and statutes and decisions from almost every state in the Union are collected in a note following the discussion on the subject. 2 Wigmore on Evidence, § 1239, and note pages 1484-1488. This latter view is more consonant to the previous decisions of this court. See Stewart v. Scott, 57 Ark. 158, 20 S. W. 1088; Driver v. Evans, 47 Ark. 300, 1 S. W. 518. This view seems to be sustained by the weight of authority also. The court concludes that the transcript from the land office is not admissible until the party offering it accounts for the loss or destruction of the deed or certificate, or shows it to be inaccessible to him or the procress of the court, or in unknown hands, or otherwise not subject to production, as a foundation to admit the transcript as secondary evidence. A supplemental opinion will be fired in Boynton v. Ashabranner to the same effect, and the mandate recalled to contain it.

2. The court was right, therefore, in excluding the transcript as evidence of the transfer of title; but the court erred in not then permitting appellant to lay the necessary foundation to admit the transcript, or to allow appellant to take a nonsuit in order to complete...