Einstein v. Holladay-Klotz Land & Lumber Co.

• Decision Date: 04 June 1908
• Parties: EINSTEIN v. HOLLADAY-KLOTZ LAND & LUMBER CO.
• Court: Missouri Court of Appeals

111 S.W. 859

132 Mo. App. 82

EINSTEIN v. HOLLADAY-KLOTZ LAND & LUMBER CO.

St. Louis Court of Appeals. Missouri.

June 4, 1908.

Rehearing Denied June 23, 1908.

1. VENDOR AND PURCHASER—BONA FIDE PURCHASERS— NOTICE—RECORD.

Where plaintiff claims by an unrecorded deed, defendant's deed, if recorded, would prevail, even though subsequent in date.

2. DEEDS—REQUISITES—EXECUTION IN BLANK —INSERTION OF NAME AFTER DELIVERY—EFFECT.

Delivery of a deed with the name of the grantee left blank, with authority to the purchaser to fill in the blank, passes title to land, even though the name of the grantee is inserted after the delivery of the deed.

3. EVIDENCE — BEST AND SECONDARY EVIDENCE — STATUTES—ABSTRACT AND INDEX OF DEEDS.

The official abstract and index of deeds required to be kept by Rev. St. 1899, § 9067 (Ann. St. 1906, p. 4187), providing that the recorder of deeds of each county shall keep a book known as the "abstract and index of deeds," which shall show certain parts of conveyances filed for record, is competent evidence when the deed records of the county have been destroyed and the original instrument is not in the possession of the party offering the abstract.

4. SAME—PRIVATE ABSTRACTS—ADMISSIBILITY TO ESTABLISH TITLE.

The records of deeds of the county in which the land was situated were destroyed by fire, and defendant offered certain abstracts or digests taken from the records by a private abstract firm, the abstracts containing the essential parts of the conveyances, and giving names of parties, date of execution, and designating the books and pages of the records from which the abstract was made, but were not copies of the records, or of the official abstract and index of deeds kept by the recorder of deeds, as required by statute. Held, that the abstracts were not admissible as original evidence to show title or to prove a deed.

5. DEEDS—EVIDENCE—ADMISSIBILITY—EXECUTION AND IDENTITY—ORAL TESTIMONY.

The testimony of witnesses who had assisted in making the abstracts which tended to show an independent recollection that conveyances corresponding to those shown by the abstracts were of record, was admissible to establish defendant's title so far as it was given from memory, refreshed by reading the entries in the abstract books.

6. SAME.

In an action involving the title to certain land, evidence held sufficient to authorize a finding that a deed signed by F., through which defendant claimed title, existed.

7. NAMES—IDENTITY—PRESUMPTION OF IDENTITY OF PERSONS.

When the name of the grantee in one conveyance, and the grantor in a subsequent conveyance of the same land are the same, it is presumed prima facie that the parties were the same, but evidence aliunde is admissible, if necessary, to prove the identity of the parties.

8. SAME—QUESTIONS FOR JURY.

In an action for the value of timber cut from certain land, where defendant claimed title under a deed from F., whether F.'s grantee, one Lewis, was the same person who was grantor under the name of "Leus" or "Luis" in a subsequent deed of the same land, was a question for the triers of fact, and a finding that he was a party to both deeds was justified.

9. SAME — EVIDENCE—SUFFICIENCY — OWNERSHIP OF LAND.

In an action in which defendant claimed through L., who was shown to be a defendant in an action for taxes against the land, the evidence considered in connection with Rev. St. 1899, § 3150 (Ann. St. 1906, p. 1788) providing that all tax deeds shall be prima facie evidence that the persons named as defendants were absolute owners of the land at the institution of the suit, held sufficient to sustain a finding that the L. named as defendant in the tax suit was the owner of the land at that time, even though the first two initials of the defendant therein were J. W., while the initials of the grantee of the deed under which defendant claimed were W. J.

10. TAXATION — TAX DEED — EFFECT AS EVIDENCE OF TITLE.

Rev. St. 1899, § 3150 (Ann. St. 1906, p. 1788), making a tax deed prima facie evidence that the person named as defendant was the absolute owner at the time of the sale, does not presume a title so conclusive that a superior record title will not overcome it, and where plaintiff's record title to land was superior to defendant's, in that defendant's grantor, against whom the tax action was brought, was not shown to have had any interest in the land, the prima facie title implied by the statute would not prevail against plaintiff's record title.

Appeal from Circuit Court, Wayne County; Jos. J. Williams, Judge.

Action by William Einstein against the Holladay-Klotz Land & Lumber Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

O. L. Munger and W. D. Isenberg, for appellant. E. H. Gamble, for respondent.

GOODE, J.

1. This is an action for the value of timber cut from lot 1, of the northeast quarter and lot 2 of the northwest quarter, section 6, township 26, range 4, in Wayne county. The action originally embraced also damages for timber cut from lot 1 of the northwest quarter of said section, but this claim was abandoned. The case was here on a previous appeal and is reported and the facts stated in 118 Mo. App. 184, 94 S. W. 296. On the second trial, which was by the court without a jury, the defendant prevailed. The entire question turns on the title to the premises, as the land was not in the possession of either party, and had not been prior to the alleged trespass. Plaintiff swore he paid taxes on it for a few years, but his testimony shows he had paid none since the Civil War. Defendant introduced tax receipts to show it had paid the taxes from 1892 to 1905. These were all the facts except the cutting of the timber, going to show either party had been concerned with the land. Plaintiff's chain of title runs thus: A patent to the land granted by the United States to Charles Faber and dated August 1, 1860; a warranty deed from Charles Faber to plaintiff dated August 15, 1860. The deed from Faber to plaintiff was unrecorded; whereas the conveyances running from Faber under which defendant claims, were recorded, and if valid, would take precedence over plaintiff's deed. Plaintiff's own testimony and that of a witness named Betts, introduced by him, went to show the latter deed was executed by Faber with the name of the grantee left blank, but with authority from Einstein as purchaser, to insert his own name or any other he chose. The land was bought by Einstein through Betts, who acted as the former's agent in many land purchases about that time, and the statements of these men were unequivocal that the deed was delivered by Faber with authority to the purchaser to insert the name of the grantee. It is contended by defendant that delivery of the deed with the name of the grantee left blank prevented it from passing the title to the lands described in it, and hence plaintiff acquired no title and has none now. In support of this proposition we are cited to numerous authorities, but consider that, though the law may be otherwise in outside jurisdictions, the validity of the deed is settled by the decision in Thummel v. Holden, 149 Mo. 677, 51 S. W. 404. Counsel for defendant insist the name of the grantee had to be inserted before delivery in order for the deed to be effective. In the case cited that very point was involved and determined the other way. See, too, Farmers' Bank v. Worthington, 145 Mo. 91, 46 S. W. 745. Plaintiff made out a prima facie title to the land, and, of course, to the timber on it. To show title in itself, defendant company offered in evidence certain entries in a series of books containing abstracts of title to the lands in Wayne county. It was admitted the records of deeds of the county of Wayne had been burnt and the entries in the abstract books were offered as having been made from the deed records before their destruction. On the former appeal we held the entries from the abstract books were not admissible in evidence because of the insufficiency of the proof of their accuracy, which was the objection then raised against their admissibility. Defendant's counsel contend the evidence of this fact contained in the present record, is cogent enough to overcome the objection to the competency of the entries. Two witnesses who worked on the abstract books, Mr. Andrews and Mr. Williams, testified on the point. Andrews said he copied many of the entries from the records, and that other entries in his handwriting were made by him, while an assistant, by the name of Needer, read the contents of the instruments from the records. He testified, too, that he generally examined the records for himself; that he and Needer sat beside each other during the work, and he frequently compared the entries with the records....