Crispen v. Hannavan
| Decision Date | 31 August 1872 |
| Citation | 50 Mo. 415 |
| Parties | E. P. CRISPEN, Respondent, v. BERNARD HANNAVAN, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Ray Court of Common Pleas.
Plaintiff, among other matters, offered in evidence a certified transcript of the papers, proceedings, orders and decrees of the case wherein Godfrey and Fish were plaintiffs, and the unknown heirs and devisees of Henry Clay, deceased, were defendants, brought to supply by decree a deed from Henry Clay to Richard Findell for the land in controversy, with other lands, dated October 14, 1839. See further the opinion of the court.
Ray, Shields and Hale & Eads, with Bannister & Hughes, for appellant.
The deed from Young to Morrison, of April 20, 1819, was clearly not admissible as an ancient deed, for the reason that plaintiff offered no proof to show that it came from the proper custody, or that it had been accompanied with any act of ownership, claim or possession of the property to which it applied.
The record copy of a deed from Morrison to Henry Clay, dated the 13th of November, 1819, was inadmissible because plaintiff offered no proof of the loss or destruction of the original, as he was bound to do in a case like this, where the deed was for a military tract and was executed and acknowledged out of this State, and not acknowledged according to our law. Our law at that date (15th of November, 1819) did not authorize a notary public to take such acknowledgment. (Wagn. Stat. 278-9, §§ 35, 36-38; 27 Mo. 235.) Section 36, Wagn. Stat. 595, relied upon by plaintiff in order to make the copy admissible in evidence, clearly does not do so, and has no application to a case like this. In the first place, that section was not designed to change the rule of law applicable to primary and secondary evidence; in other words, said copy cannot be resorted to without first accounting for the original, as required by law. And in the next place, that section is a part of the general law of evidence applied to deeds generally; but this deed being for military land, and executed and acknowledged out of this State, and not in conformity to our law, is an exception to the general rule, and by our law governing such lands and such deeds, is subjected to a different and special rule. And in such cases such copies cannot be read without proving the loss or destruction of the original. (Wagn. Stat. 278-9, §§ 35, 36, 38; 27 Mo. 235.)
G. W. Dunn and L. H. Waters, for respondent.
The deed from Young to Morrison, acknowledged in the District of Columbia before a notary public, was properly admitted. It was the duty of the court to take notice of the laws of the District of Columbia relating to the acknowledgment of deeds. (Carpenter v. Dexter, 8 Wall. 513.) It was an ancient deed. (1 Greenl. Ev., § 21; Winn v. Patterson, 9 Pet. 673; Howlett v. Cock, 7 Wend. 373.) The certified copies of the deeds from Young to Morrison, and from Morrison to Clay, were properly admitted under the statute. (Wagn. Stat. 595, §§ 35, 36.)
This was an action of ejectment to recover certain military lands lying in Carroll county. The two deeds offered in evidence by the plaintiff and received by the court were, I think, improperly admitted. One of the deeds was acknowledged before a notary public of the District of Columbia, and the other before an officer of like character in the State of Kentucky. The statute provides that every instrument of writing executed out of this State and within the United States, which conveys or affects military bounty lands in this State, and which is acknowledged or proved according to the laws and usages of the place where executed, shall be received and recorded in the county where such lands lie; and such instrument is then made as valid and effectual as if acknowledged or proved in accordance with the laws of this State. (Wagn. Stat. 278, §§ 35, 36.) But it is nowhere shown that at the time of the execution of the deeds a notary public was authorized to take the proof or acknowledgment of the same, either in the District of Columbia or in the State of Kentucky, nor was there any such power or authorization existing in...
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