Felker v. Breece

• Decision Date: 15 March 1910
• Citation: 126 S.W. 424,226 Mo. 320
• Parties: THOMAS A. FELKER v. MARY A. BREECE and GEORGE BREECE, Appellants
• Court: Missouri Supreme Court

126 S.W. 424

226 Mo. 320

THOMAS A. FELKER v. MARY A. BREECE and GEORGE BREECE, Appellants

Supreme Court of Missouri, Second Division

March 15, 1910

Appeal from Maries Circuit Court. -- Hon. Wm. H. Martin, Judge.

Affirmed.

W. H Allen for appellants.

(1) One who relies, to sustain his title to real estate, upon a lost deed, or asserts rights under any lost instrument, must prove the execution, loss and the material parts of such deed or instrument, by clear, cogent and convincing evidence; the same measure of proof is required as in suits for reformation of instruments, and the evidence must be of the clearest and most satisfactory character. Peters v. Worth, 164 Mo. 431; Napton v. Leaton, 71 Mo. 358; Dagley v Black, 197 Ill. 53; Van Horn v. Munnell, 145 Pa. St. 497; Edwards v. Noyes, 65 N.Y. 125; Connor v. Pushor, 86 Me. 300; Shorter v Shepard, 33 Ala. 648; Williams v. Miles, 68 Neb. 463; Clark v. Turner, 50 Neb. 290; Jacques v. Horton, 76 Ala. 238; Slipman v. Telschow, 24 Ohio Cir. Ct. 236; Jones on Evidence (2 Ed.), sec. 227. (2) Where it is sought to pass title to real estate by parol or secondary proof of the contents of a lost deed, such proof must establish, not only its legal execution by the supposed grantor, but all of the material and essential parts of such instrument as a legal conveyance; must show clearly and pointedly its tenor and contents, and whether it conveys a fee simple, a life estate, a term for years, or otherwise, as the case may be. Dagley v. Black, 197 Ill. 53; Edwards v. Noyes, 65 N.Y. 125; Shorter v. Shepard, 33 Ala. 648; Van Horn v. Munnell, 145 Pa. St. 497; Roe v. Irwin, 32 Ga. 39; 3 Wigmore on Evidence, sec. 2105; Jones on Evidence (2 Ed.), sec. 227. (3) Before secondary evidence of the contents of a written instrument can be admitted in evidence, the existence and legal execution of such instrument must be clearly established, and its loss shown. Zollman v. Tarr, 93 Mo.App. 234; Shea v. Seelig, 89 Mo.App. 149; Linn v. Insurance Co., 78 Mo.App. 203; Holman v. Bacchus, 24 Mo.App. 636; Hunt v. Selleck, 118 Mo. 593; Atwell v. Lynch, 39 Mo. 519; Perry's Admrs. v. Roberts, 17 Mo. 36; Hardin v. Lee, 51 Mo. 244; Johnson v. Gas Co., 90 Ala. 505; Burke v. Hammond, 76 Pa. St. 172.

W. S. Pope and J. W. Terrill for respondent.

The evidence that Richard Owens and wife conveyed the land to James M. Crawford was as strong and conclusive as the circumstances of the case could make it, and grounds for introduction of secondary testimony were complete. Winham v. Kline, 77 Mo.App. 36; Abel v. Strimple, 31 Mo.App. 86; Briggs v. Henderson, 49 Mo. 531; Foulk v. Colburn, 48 Mo. 225; Henry v. Diviney, 101 Mo. 378; West v. West, 75 Mo. 204; Bogart v. Greene, 8 Mo. 115; Smith v. Lindsay, 89 Mo. 76; Einstein v. Holliday-Klotz Co., 118 Mo.App. 184; Ming v. Olster, 195 Mo. 460; Graton v. Holliday-Klotz Co., 189 Mo. 322; Hannah v. Insurance Co., 109 Mo.App. 152; Montgomery v. Dormer, 181 Mo. 5; Liles v. Liles, 183 Mo. 326; Stephans v. Metzger, 95 Mo.App. 609; Rissler v. Insurance Co., 150 Mo. 366; Addis v. Graham, 88 Mo. 197; Perkins v. Fielding, 119 Mo. 149.

OPINION

BURGESS, J.

This is a suit under section 650, Revised Statutes 1899, to ascertain and determine the title to certain land described in the petition as the southwest quarter of section seven, and the northwest quarter of section eighteen, township forty, of range ten, in Maries county, Missouri, and containing three hundred and twenty acres.

Both parties to the suit claim under Richard Owens as the common source of title. Plaintiff bases his claim of title to the land in controversy on a quitclaim deed, dated December 1, 1905, from Margaret C. Mulhall, only heir of James M. Crawford, quitclaiming said land to plaintiff, and on an alleged lost deed to said land from the said Richard Owens to the said Crawford, which deed, as claimed by plaintiff, was dated February 28, 1860, and recorded in Book "C," p. 499, in the office of the recorder of deeds of Maries county, and the record thereof was burned.

To establish the execution and contents of said alleged lost deed from Richard Owens to James M. Crawford, plaintiff offered and read in evidence the deposition of Robert A. Bakewell, of the city of St. Louis, who testified that he made the inventory of the estate of James M. Crawford, deceased, filed in the probate court of said city, and identified said inventory as having been made by him, and signed by him as a witness thereto. This inventory, a certified copy of which was introduced in evidence, contained, among others, the following recital:

"Deed of Richard Owens and wife, dated February 28, 1860, recorded in Book C., p. 499, etc., Maries county, Missouri, for southwest quarter of section 7, and northwest quarter of section 18, township 40, range 10, west of fifth principal meridian, containing 314.17 acres, in Maries county, Missouri."

This inventory purported to have been signed by Mr. Bakewell, as a witness, on March 16, 1866. Apart from the inventory, however, the witness had no independent recollection of the deed. The question was asked him if he could recollect the time and place and the document from which he made the memorandum contained in the inventory, to which question he replied: "As to the place I have no recollection; but as to the fact that I held in my hands, on the date of that inventory, a deed purporting to be made by Richard Owens and wife, as stated in the inventory, I know to be a fact, for unless it was so I would not have set it down as my handwriting shows that I did, nor would I have sworn to the correctness of the inventory. Q. Have you any independent recollection of it? A. I could not for the life of me, from any independent recollection aside from seeing the inventory, say anything about its contents. Q. Or the deed it describes, either? A. I have no independent recollection of the deeds, but I know that the deeds set forth in that inventory are correctly set forth, and were in my hands at the date named. I know that from the fact that I signed and swore to the inventory. Q. Now, from your habit of doing business, if there had been anything defective about that deed that you noticed, what would you have done about making the inventory? A. I would have noted the fact if it was a glaring deficiency such as the omission of the name of a party, or no certificate of record of the deed, or no acknowledgment. I think it would not have escaped me. Q. You could not state any of the contents of that deed, from memory? A. No, I could not."

Plaintiff also introduced in evidence the deposition of Margaret C. Mulhall, who executed the quitclaim deed to plaintiff. She testified that she was the daughter and only surviving heir-at-law of James M. Crawford, who died in 1866; that her father owned a tract of land in Maries county, containing 314 acres and a fraction; that she paid taxes on it, the first payment being in 1882, and the last payment in 1901, but that the tax receipts had been mislaid and she was unable to find them; that she was unable to describe the land; that she had seen, and had in her possession in 1901, a deed from Richard Owens and wife to James M. Crawford, and that the same had been mislaid or lost; that she could not give the contents of the instrument, except that it was for 314 acres of land in Maries county, and had on the back thereof a notation to the effect that it was from Richard Owens and wife to James M. Crawford. She did not know whether the deed had been recorded, but she presumed that it had been recorded during her father's lifetime, as it was handed to her by the administrator. She had tried to sell the land since her husband's death in 1900, and while trying to sell it was informed that the courthouse was burned a number of years ago, and that some of the records, including the record of this deed, had been destroyed; that she heard this in 1901, after she had misplaced the deed.

L. N. Hawkins, circuit clerk and recorder of deeds of Maries county, testified on behalf of plaintiff that parts of deed records "B," "C" and "E" were missing from his office. Upon examining certain other records, the witness testified that the date of the filing of the last deed recorded in "A" was June 15, 1857, and of the first deed recorded in "D," November 7, 1860; that "E" was gone, and that the first deed recorded in "F" was in December 10, 1866.

Testifying in his own behalf, plaintiff stated that he had been deputy collector of the revenue for Maries county from 1881 to 1885, and collector of the revenue from 1885 to 1889, and that during that period of time the taxes on the land in question were paid by the Crawford estate; that for some years afterwards the taxes had been paid by him as agent for Margaret C. Mulhall, and that at no time while he was in office were any taxes paid on said land by Richard Owens. Plaintiff further testified that the land had been sold for delinquent taxes in the year 1898, under an execution in a suit for taxes against the unknown heirs of Richard Owens, and that he had purchased the same at the sale. He also testified that he remembered the occasion of the burning of the Maries county courthouse, he being at the time about eight years old.

John W. Terrill, one of plaintiff's attorneys, testified that he had made an examination of the records with reference to the assessment of the property, and that for a number of years, so far as his examination extended, the property had been assessed to M. Crawford.

Defendants introduced in evidence a warranty deed executed by Mary Bierman and husband, Henry Bierman, of the city of St. Louis conveying the land in controversy to Mary A. Breece, defendant, said deed being dated March 17, 1905, and recorded March 20, 1905....