Fenderson v. Missouri Tie And Timber Company
| Decision Date | 02 February 1904 |
| Parties | FENDERSON, Respondent, v. MISSOURI TIE AND TIMBER COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ripley Circuit Court.--Hon. J. L. Fort, Judge.
Judgment reversed and cause remanded.
J. C Sheppard and Dinning & Hamel for appellant.
Plaintiff failed to prove title in fee or otherwise in himself to the land in his petition described for two reasons, viz.: (1) The deed from Jacob Van Wormer to Charles C. Mock vested the title to said premises in said Mock. This is a link in plaintiff's chain of title, Next plaintiff introduced a deed from Charles C. Mack to Robert Jennison. This was introduced over the objections of appellant. There was no evidence that Charles C. Mack was Charles C. Mock. On this question not a scintilla of evidence was introduced. M-o-c-k and M-a-c-k are not idem sonans. Names are said to be idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced: The names M-o-c-k and M-a-c-k do not have such a similarity of sound, when pronounced, that a difference would not be observed by an attentive ear. M-o-c-k and M-a-c-k do not sound at all alike and it was not shown by common usage, a different pronunciation of the word M-a-c-k when used as a proper name. Geer v. Lumber & Mining Co., 134 Mo. 85; Wheeler v. Weaver, 93 Mo. 432; Robson v. Thomas, 55 Mo 582; Simonson v. Dolan, 114 Mo. 179; Chamberlain v. Blodgett, 96 Mo. 482; Black v. The State, 57 Ind. 109; Com. v. Donovan, 95 Mass. 57; Weber v. Ebling, 2 Mo.App. 15; People v. Amenn, 76 Ill. 188; State v. Havely, 21 Mo. 498. (2) The copy of the will of William Armstrong, which was introduced in evidence over the objections of appellant, did not vest title to the land in question. A copy of a will, or the record thereof, when recorded, is not admissible in evidence. A will or a copy of the record thereof, must be duly probated by the court of the domicile of the testator having jurisdiction to take proof and probate wills, and the probate of a will in a State other than where the land devised is situated must be made according to the laws of the State wherein the land is situated. Keith v. Keith, 97 Mo. 223; Gaines v. Fender, 82 Mo. 497; Van Syckel v. Beam, 110 Mo. 589; 1 Am. Law of Administration (Woerner), 2 Ed., sec. 226; Graves v. Allen, 100 Mo. 300; Graves v. Ewart, 99 Mo. 17; Cabanne v. Skinker, 56 Mo. 357; Story on Conflict of Laws, sec. 474; McComack v. Sullivan, 10 Wheat. 192 and cases cited; Lucas v. Tucker, 17 Ind. 41; Jarman on Wills, 1; 1 Red. on Wills (3 Ed.), 398; Whart. on Conflict of Laws, 587.
Thomas F. Lane for respondent.
(1) The evidence in this case clearly shows that plaintiff was, at the date of the alleged trespass, the owner in fee of the land described in this petition, hence he is entitled to recover herein. The defendant's first point of attack on the record title of plaintiff is a deed from the common source of title Jacob Van Wormer to Charles C. Mock or Mack, dated February 12, 1862, and recorded in book "I." This is a warranty deed in due form. And every presumption of law tends to support its validity. The question as to whether the names Mack or Mock are idem sonans does not enter into this case in view of the record as affected by stipulation printed on page 2 of respondent's brief; the judgment of the trial court sitting as a jury is conclusive on the finding of facts. We deem it unnecessary to cite many authorities to support this elementary principle. (2) It is not necessary in order to the admission of the copy of the will that such will shall have been admitted to probate in this State or recorded in said office of such court. The will in this case which was made in Kentucky was held admissible in evidence over the objection that its admission to probate in Kentucky was not sufficiently authenticated. The probate of the will in another State is a judicial proceeding, to the record of which full faith and credit is to be given, when authenticated as required by the act of Congress. Bradstreet v. Kinsells, 76 Mo. 63; Drake v. Curtis, 88 Mo. 644. (3) Under the laws of this State the will could not be filed and recorded in the probate court until proved as required by statute. Section 4632, R. S. 1899. And the probate courts having original exclusive jurisdiction in the matter of wills their judgments can not be attacked collaterally, and their judgments are attended by every presumption as to their force and validity as courts of general jurisdiction. Banks v. Banks, 65 Mo. 432; the fact that a foreign court uniformly exercised jurisdiction over a subject is in the absence of the proof to the contrary evidence that the jurisdiction is lawful. Robertson v. Staed, 135 Mo. 135; Allen v. Sales, 56 Mo. 28. (4) Every presumption is indulged in favor of the regularity and validity of a judgment. Kane v. McCowan, 55 Mo. 181; Bearden v. Miller, 54 Mo.App. 199. Decrees of courts of sister States are presumptively valid, and this presumption must prevail until overcome by proper proof. Athony v. Rice, 110 Mo. 223, 19 S.W. 423. (5) The courts of Missouri do not take judicial notice of the laws of our sister States, but in the absence of proof to the contrary, they will be presumed to be the same as our own. Selking v. Hebel, 1 Mo.App. 340; Conrad v. Fisher, 37 Mo.App. 371; State v. Baty, 166 Mo. 564.
Action for damages for trespass on lands by cutting and removing trees from it. The land was wild and not in the actual possession of any one; but plaintiff asserts the right to maintain this action by virtue of the constructive possession which he says he had as owner of the fee. Both parties claim under Jacob Van Wormer as the common source of title; the plaintiff under a warranty deed executed by said Van Wormer in his lifetime to Charles C. Mack and subsequent transfers of the title to the plaintiff; the defendant under a quitclaim deed from the heirs of Van Wormer. In plaintiff's chain of title is the will of William Armstrong. This will was executed February 22, 1886, in Bradford county, Pennsylvania, where Armstrong resided. It is an essential link in plaintiff's title and the only question of moment in the case is whether or not the certified copy of the will from the office of the register of wills of Bradford county, which was introduced by the plaintiff, was sufficient evidence to show that the title to the land passed by the will to Emeline Armstrong, the devisee. The document introduced comprises a copy of the will of William Armstrong with the attesting clause, signed by two witnesses, and the certificates of Wm J. McCabe, register of wills of Bradford county and A. C. Fleming, president judge of the court of common pleas or orphan's court for Bradford county. The execution and attestation of the will complied with the statutes of this State, and the authentication of the copy complies with the act of Congress. But the plaintiff offered nothing, as said, except an exemplification of the will itself, with the attesting clause, and the certificate of the register that he had compared the copy with the original on file and of record in his office and found the same to be a true copy of and transcript of the original record. What is lacking is an exemplification of the record of the probate of the will in the proper court of Bradford county, Pennsylvania, if it was ever proved. The defendant insists that for the will to be operative as a conveyance in plaintiff's chain of title, it was necessary for it to be proved, and that for the record introduced in evidence to establish this necessary link in his chain of title, it was necessary to have an exemplification of the decree or judgment, authenticated according to the act of Congress. This point must be granted. Our statutes provide that any person owning real or personal estate in this...
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