Elmslie v. Thurman

• Citation: 87 Miss. 537,40 So. 67
• Court: United States State Supreme Court of Mississippi
• Decision Date: 26 February 1906
• Parties: BRIDGET ELMSLIE v. MARGARET E. THURMAN ET AL

40 So. 67

87 Miss. 537

BRIDGET ELMSLIE v. MARGARET E. THURMAN ET AL

Supreme Court of Mississippi

February 26, 1906

FROM the chancery court of Washington county, HON. PERCY BELL Chancellor.

Mrs Elmslie, the appellant, was complainant in the court below Mrs. Thurman and others, the appellees, were defendants there. From a decree in defendants' favor the complainant appealed to the supreme court.

The complainant, by her bill in chancery, sought to enforce a vendor's lien arising out of a conveyance from James Campbell to H. and J. D. Nichols, the complainant being the assignee of the notes evidencing the purchase money. On the trial in the court below, the chancellor sustained the objection of the defendants to the introduction of a certified copy of the deed from Campbell to the Nicholses, on the ground that the deed was not properly acknowledged, and therefore not entitled to be recorded, and also excluded the notes which complainant offered in evidence, and dismissed the bill, the instrument on which the suit was based not being produced at the hearing.

Decree reversed.

A. J Rose, for appellant.

The chancellor, in excluding the certified copy of the deed and the notes sued on, acted on the theory that, as the bill waived answer under oath, it was not incumbent upon the defendant to do more than deny, as she did, on information and belief, the execution of the deed from Campbell to the Nicholses, and that his denial, not under oath, put plaintiff to proof of execution of the deed and notes. That this view of the chancellor was erroneous is settled in Wanita Woolen Mills v. Rollins, 75 Miss. 253 (S.C., 22 So. 819); Kendrick v. Kyle, 78 Miss. 293 (S.C., 38 South Rep., 951); Brown v. British, etc., Co., 86 Miss. 388 (S.C., 38 So. 312); Masonic, etc., Association v. Simmons, 86 Miss. 470 (S.C., 38 South. Rep., 791).

The defenses presented were affirmative defenses, and no testimony was introduced to sustain them. The burden of proof was on defendant as to affirmative matter set up in the answer. Osborne v. Crump, 57 Miss. 622.

Percy & Campbell, for appellees.

Counsel for appellant, in his brief, seems to misapprehend entirely the reason for the objection made to the introduction of the certified copy of the deed, and relies upon the case of Wanita Woolen Mills v. Rollins, 75 Miss. 253 (S.C., 22 So. 819), and the subsequent cases approving it, his contention being that appellant was not put upon proof of the execution of the deed, because its execution was not denied in the answer under oath.

This rule seems to be established by the cases cited by him, but it does not affect the principle contended for by us--namely, that it was necessary for him to produce upon the hearing the original deed, or, having accounted for its nonproduction, to prove its contents, or to produce a duly certified copy of the instrument, provided it was properly recorded.

Complainant was not entitled to recover without the production of the notes sued on and of the deed out of which arose the lien which he sought to enforce against the land--and this, independent of the fact that the necessity for proving the genuineness of the deed was obviated by the failure of appellees to deny such genuineness under oath. The statute obviated the necessity, under these circumstances, of proving the genuineness of the deed; but it leaves entirely unaffected the rule of evidence which requires that the deed should be produced at the hearing--and this, whether its execution was denied under oath, or even if the decree was based upon a pro confesso, the allegations of the bill not having been denied.

The rule, and the reason of the rule, requiring the production of the document upon which complainant's right to recover is predicated, is elaborately considered in 2 Wigmore on Evidence, sec. 1179, et seq. The reason of the rule is, the document should be placed before the tribunal for its personal inspection. Ib., sec. 1185. That production is for the benefit of the tribunal, not the opponent. The authentication of the document--that is, proof that it was executed as it purports to be--is often dispensed with by statute, where the opponent, failing to traverse its genuineness, is taken as having admitted that fact. Nevertheless, the rule requiring the production still exists, and must be satisfied. Ib., sec. 1187.

CALHOON, J. WHITFIELD, C. J., concurs.

OPINION

CALHOON, J.

This case is improperly styled on the back of the record, and on the docket here; the real defendants below, appellees here, being Mrs. M. E. Thurman, R. Lee Thurman, and J. D. Nichols. The apparent first-named appellee of the docket style, Jesse N. Thurman, nowhere appears in the record.

As assignee of purchase-money notes, appellant sought by his bill to enforce the vendor's lien on land to pay them. She is clearly entitled to a decree of sale unless appellees are right on the solitary contention they make, which will be presently stated. Her bill avers the conveyance of the land by her assignor and the relation of defendants to it, makes proper averments as to the notes, etc., has an appropriate prayer for answer, but waives oath to the answer. Accordingly, the answer is not sworn to, but denies the execution...