Evans v. Horan

• Decision Date: 14 November 1879
• Citation: 52 Md. 602
• Parties: DAVID EVANS v. ELIZABETH HORAN and Eliza Preston.
• Court: Maryland Court of Appeals

52 Md. 602

DAVID EVANS v. ELIZABETH HORAN and Eliza Preston.

Court of Appeals of Maryland

November 14, 1879

Appeal from the Circuit Court for Garrett County.

This was an action of ejectment brought by the appellees against the appellant and Sarah Evans, his wife. Pending the case Sarah Evans died; her death was suggested, and her name as a defendant was stricken out.

First and Second Exceptions.--Sufficiently set out in the opinion of the court.

Third Exception.--The plaintiffs offered the following prayers:

1. If the jury shall believe from the evidence, that William Barnes died, seized and possessed of the land mentioned in the plaintiffs' declaration, and by his last will and testament devised the same to his daughter, Ruth Metz, for life, and at her death, to her son, John Metz; and that the said John died intestate, and without issue; and that the said John Metz did not, during his life-time, sign and make the deed of conveyance offered in evidence in this case; or if they do believe that he did sign, execute and acknowledge said deed, but at the time of so doing, had not sufficient mental capacity to make a valid deed or contract, and that the said Ruth Metz departed this life in 1863, and that the plaintiffs in this cause are the sisters of said John Metz then the plaintiffs are entitled to recover in this suit to the extent of their interest or estate therein, at the time of the bringing of this suit.

2. That the defendant cannot make title to the land mentioned in the plaintiffs' declaration, by possession thereof, if they find that the land was devised by William Barnes to Ruth Metz for life, and at her death to John Metz, and that said Ruth died in 1863.

3. That unless the jury shall believe from the evidence that John Metz signed the paper-writing offered in evidence by the defendant, purporting to be the deed from Isaac Metz, Ruth Metz and John Metz, to one James Morrison, Jr., dated the 4th of December, 1821, offered in evidence, that then the said paper-writing is not the deed of John Metz, and passed no title out of the said John Metz to James Morrison, Jr., and that neither the defendant nor any one else can claim title to the land mentioned in the said writing, by virtue of the said writing.

4. That if the jury shall believe from the evidence that John Metz did sign, seal and acknowledge, with Isaac and Ruth Metz, the paper-writing offered in evidence by the defendant purporting to be a deed of conveyance of the land mentioned in the plaintiffs' declaration, to one James Morrison Jr.; and if they shall further believe from the evidence that the said John Metz, at the time of the signing, sealing and acknowledging the said writing, was of weak and unsound mind, and by reason of his weakness and unsoundness of mind, was incompetent to make a valid deed of conveyance of his land or any interest therein, that then the said paper-writing conveyed no title from said John Metz, and that the said defendant, nor any one else, can claim any title to the land mentioned in the plaintiffs' declaration, under and by virtue of said deed or paper-writing.

And the defendant offered the three following prayers:

1. If the jury believe that John Metz was not insane, not idiotic, but was a man only of weak mind, and of sufficient capacity to make a valid contract, then, before they can find against the deed offered in evidence (purporting to be executed by him) upon that ground, they must further find that such weakness of mind was taken advantage of by the party or parties who procured said deed from him.

2. That under the evidence in this cause, the plaintiff cannot recover to a greater extent than two-eighths and two-sevenths of one-eighth.

3. That the copy of the alleged deed from John Metz, and others, to James Morrison, Jr., offered in evidence, is prima facie evidence of the execution of said deed, and the burden of proof is on the plaintiffs to show that it was not executed by said Metz, and also to show the mental incompetency of said Metz to execute the same.

The court (Pearre, J.,) granted the plaintiffs' prayers, and the defendant's second and third prayers as offered, and modified the defendant's first prayer by inserting the word "only" after the word "man," and the words "and of sufficient capacity to make a valid contract," after the words "weak mind." The defendant excepted.

The jury found a verdict for the plaintiffs to the extent of two-eighths, and two-sevenths of one-eighth of the land claimed in the declaration, and judgment was entered accordingly. The defendant appealed.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER, ALVEY and IRVING, JJ.

William Brace, for the appellant.

James E. Ellegood, for the appellees.

Miller J., delivered the opinion of the court.

This is an action of ejectment involving the title to two tracts of land in Garrett County, containing about eighty-four acres. It was admitted that the title to these tracts was, in 1803, vested in William Barnes by a deed from the patentee, and that Barnes by his will devised the same to his daughter Ruth Metz for life, with remainder in fee to her son John Metz. The life tenant, Ruth Metz, died in 1863, and John Metz died in 1857 or 1858, unmarried and without issue, leaving eight brothers and sisters, his heirs at law, and the plaintiffs are two of his sisters. Upon this proof the plaintiffs rested their case. The defendant then offered in evidence a duly certified copy of a deed purporting to have been executed by Ruth Metz and her husband, Isaac Metz, and by her son, the said John Metz, bearing date December 4th, 1821. By this deed the land in question was conveyed to James Morrison in consideration of the sum of $400, and the defendant claimed title by mesne conveyances from Morrison. The plaintiffs then called a deputy clerk of the Circuit Court for Allegany County, who had been summoned to bring with him the Land Record Book of that county containing the record of this deed of 1821, and proposed to have the book identified by the witness, and to offer in evidence to the jury the original record of this deed, in order to show (as they claimed said record would show,) that the copy of the deed offered in evidence by the defendant was not a true copy, in that, as plaintiffs claimed, the original record contained no mark to the name of John Metz, though the same contained the words "his mark," for the purpose of showing that the same was never executed by John Metz. The defendant objected to this record being offered in evidence, but the court overruled the objection and allowed the record to be offered to the jury. To this ruling the defendant excepted, and this is the first question presented for review.

The objection mainly urged against the correctness of this ruling is, that the Land Record Book produced and offered in evidence, constituted part of the original records of another county. The argument is, that in no case can such records be removed from the county of their origin, and the custody of the proper officials there, for the purpose of being used as evidence in the courts of other counties. It is said the Code, Art. 37, sec. 58, has provided, that exemplified copies of such records shall be evidence, and reference is made to Jones v. Jones, 45 Md. 154, and Goldsmith v Kilbourn, 46 Md. 292, where it was held, that original papers in a cause ought not to be taken from the files of another court, and produced as evidence instead of copies or exemplifications, as provided for by the Code, and that such original papers can only be used in the court to which they belong. The propriety of this general rule cannot be questioned, and it applies as well to Land Record Books, as to judgments, decrees or other judicial proceedings. No description of records are more important than those of conveyances of real estate, and in none are the public more deeply interested. A rule or principle of evidence therefore which looks to the preservation of such records, and promotes their security and safety by preventing their removal from place to place, at the instance and for the use of litigants in other counties, should be carefully observed and firmly upheld by the courts. But while this is so, circumstances may occur when use must be made of the original records in order to prevent wrong and injustice. Such in our opinion are the circumstances of this case, and the court below, therefore, properly allowed a departure from the general rule. The execution by John Metz of the deed of 1821, was a vital point to the defendant's case. The original document which would have thrown light upon this question was not produced, and the trial took place nearly fifty-eight years after the date of that instrument. There was no proof that it was in existence or had been preserved by any one. It could not be presumed to have ever been in the possession of the plaintiffs. On the contrary, if presumption is to be indulged in, in the absence of all proof on the subject, that presumption would place it in the hands of the defendant, for he claimed under it, and it was a muniment of his title. In support of his title the defendant produced, as he had the right to do, an exemplified copy of this deed. That copy indicated, that John Metz had executed the original instrument by making his mark in the proper place. But...