Carter v. Myers

• Decision Date: 26 February 1923
• Docket Number: 23014
• Citation: 95 So. 252,132 Miss. 698
• Court: Mississippi Supreme Court
• Parties: CARTER v. MYERS et al

95 So. 252

132 Miss. 698

CARTER v. MYERS et al

No. 23014

Supreme Court of Mississippi

February 26, 1923

Division A

(Division A.) January 1, 1920

2. LOST INSTRUMENTS. Contents of lost deed must ordinarly be substantially proven.

The contents of a lost document need not be proven literally, but only substantially, and if the document is a deed it is sufficient if it appear from the evidence that it was executed, to and by whom, that it contains the necessary words of grant, the consideration therefor, and what property was conveyed thereby.

2. LOST INSTRUMENTS. Contents of lost deed must ordinarily be proven by witnesses who have seen and read it; contents of lost deed may be proven by conduct of grantor inconsistent with nonexistence thereof.

The contents of a lost deed must ordinarily be proven by witnesses who have seen and read it, but may be proven in a controversy where the grantor or his heirs are seeking to recover the land by admissions and conduct of the grantor inconsistent with the nonexistence of the deed.

HON. V A. GRIFFITH, Chancellor.

APPEAL from chancery court of Forrest county, HON. V. A. GRIFFITH Chancellor.

Suit by S. P. Carter against Rachel Norwood Myers and others. From a decree dismissing the bill, plaintiff appeals. Reversed, and judgment for plaintiff.

Judgment reversed.

Currie & Currie for appellant.

The decree in this case is remarkable, to our minds at least, for its admission on the one hand of the sufficiency of the proof to engender, compel, and justify the belief that the deed was actually made by Norwood and his wife to Breland, and yet on the other hand holding that by the policy of the law to make titles to real estate secure, the court could not give sanction to the effect upon the mind of the proof in the case, because perchance the exact language and phraseology of the deed had not been recited by the witnesses or some witness in the case.

All that the strictest rule of law or evidence or of public policy does require is that it be clearly shown that the deed was actually made. Such we understand to be the only, final, and last test of the evidence. If the evidence be sufficient to convince the intelligent human mind clearly that the deed was actually made, it is sufficient to meet every requirement of the law or of public policy. The testimony proved the actual signing and delivery of the deed, or at least an instrument intended and accepted as a deed. The appellees and none of them undertook to dispute this, and offered no evidence to disprove the facts of the signing and delivering of the instrument. Other testimony identifies the land in question and also proves, second, that Norwood undertook to sell the identical land to witness before he made the sale of the same to Mrs. M. E. Breeland.

The testimony of all of the witnesses for the appellant proved that the Norwoods moved off of and abandoned the land soon after these sales, and that they never did thereafter return to the same and live upon it, or any portion of the same, and never did thereafter claim to own or pretend to own the same or any part thereof. There was no objection made by the appellees to the testimony of the witness, T. I. Breeland, to the effect that Norwood, the grantor, had told him during his lifetime and after he made the deed that he had sold the eighty acres of land in question to Mrs. M. E. Breeland, and if objection had been made to this testimony it would have been overruled for the reason that the statement would have been one against the interest of Norwood, if living, and was admissible in this case between his heirs, or those standing in his shoes, and the appellant in this case, and as authority in support of the principle of law involved we cite the case of Baldridge v. Stribling, et ux, 57 So. 658.

The truth is that the chancery court decided this case against the appellant for the simple and sole reason that the appellant was unable to produce witnesses by whom it could prove the exact phraseology or language of the deed. The chancellor, himself had no doubt of the execution and delivery of the deed as a fact. He so stated in his opinion. He further stated that this fact could not be doubted by any person who heard the testimony.

But the fact that the deed was made and delivered was all the law required the appellant to prove. We cite the following authorities in support of the contentions which we have laid down in this brief: Perry v. Burton, 111 Ill. 138; Burdick v. Peterson, et al., 72 F. 864; Native Lumber Co. et al. v. Elmer et al., 78 So. 703. Norwood in his lifetime admitted that he had sold the same to Mrs. M. E. Breeland, and the admissions of a party may be received in evidence to establish the execution of a converted instrument alleged to be lost, and in support of this proposition we cite the following authorities which are directly in point: Jackson v. Vail, 7 Wend. (Par. N. Y.) 125; Scott v. Crouch, 24 Utah 377, 67 P. 1068; Leggett v. McLendon, 66 Ga. 725; Peart v. Taylor, 2 Bibb. (Ky.) 556.

N. C. Hill, for appellees.

Appellant, in his bill of complaint, did not state the contents of said alleged deed to Mrs. M. E. Breeland nor did he say what the consideration was, the date thereof, nor undertake to give the court any idea of the material contents of said deed, but merely alleged that it was a warranty deed. Upon issues thus made, trial was had before the chancellor the witnesses being introduced in open court on the part of appellant, there being none upon the part of appellees. It developed that the said Norwood, the patentee of said lands, and his children, the defendants in said suit, were all good, ordinary, piney woods negroes, some of them being still minors, all of them minors at the time of the said deed was alleged to have been made. The appellant undertook to establish the execution and delivery of the deed by the husband of Mrs. M. E. Breeland, one W. T. Breeland. He could not read or write but claimed that at one time the said Norwood and wife had executed a paper to Mrs. Breeland which he thought was a deed but he was unable to tell the court anything about the contents of the alleged instrument. He was unable absolutely to give any of the words constituting the alleged deed and did...