Flournoy v. Warden

• Decision Date: 31 January 1853
• Citation: 17 Mo. 435
• Parties: FLOURNOY, Plaintiff in Error, v. WARDEN, Defendant in Error.
• Court: Missouri Supreme Court

17 Mo. 435

FLOURNOY, Plaintiff in Error,

v.WARDEN, Defendant in Error.

Supreme Court of Missouri.

January Term, 1853.

1. Proof of the execution o a deed by a person of the same name, is prima facie evidence of the identity of the grantor, even though it be shown that there are many other persons of the same name.

2. A deed must go to the jury when the party offering it makes out a prima facie case of execution. The court cannot hear counter evidence and exclude it from the jury.

Error to Chariton Circuit Court.

This was an action of ejectment begun in 1848, by Flournoy against Warden, for the south-east quarter of section 7, township 53, range 19, granted to John Smith, as bounty land for his services in the war of 1812 with Great Britain; and the question was, as to the identity of Smith, the plaintiff's grantor, with Smith, the patentee. On the trial before the court, without a jury, on the general issue, the plaintiff gave the following evidence of title:

1. A patent, dated May 5, 1819, from the United States to John Smith, a private in Boyle's corps of artillery, for the land in controversy.

2. A power of attorney from John Smith, of Franklin county, Ohio, dated September 14, 1846, to Thomas Pearce, authorizing him to sell and convey the land described in the patent. The power was attested by S. Shultz and J. W. Long. It was acknowledged before the subscribing witness, Shultz, who was a justice of the peace of Franklin county, Ohio, and the official character of the justice was certified by the clerk of the Court of Common Pleas of Franklin county, Ohio, under the seal of said court.

3. A deed dated May 5, 1848, executed by Thomas Pearce, under the above power of attorney, to the plaintiff, for the land in controversy. This deed was acknowledged before a justice of the peace of Chariton county, and both the deed and power of attorney were recorded in Chariton county.

The defendant then gave in evidence the deposition of Solomon Shultz and J. W. Long, the subscribing witnesses to the power of attorney, and also of Matthias Martin, a person long and extensively acquainted in Franklin county, and of others.

Solomon Shultz testified that he resided in Franklin county, Ohio, at the time the power of attorney bears date, and before and since, and that he was a justice of the peace of said county; that he never witnessed nor took the acknowledgment of the execution of any instrument of writing from Smith to Pearce, and never knew any person of the name of John Smith in Franklin county, where he has resided a great many years.

John W. Long testified that he resided in Franklin county, Ohio, at the time the power of attorney bears date, and before and since; that he never witnessed the execution of any instrument of writing from John Smith to Thomas Pearce, nor did he ever know any person by the name of John Smith, in Franklin county, where he had resided for many years.

The plaintiff then read, by way of rebutting evidence, the depositions of the same witnesses taken on his behalf, since the depositions above mentioned were taken on behalf of the defendant. Shultz testified that his signature to the certificate of acknowledgment, and as subscribing witness of the power of attorney, was genuine; but he had no recollection of the transaction, nor did he know any John Smith, except a young man. Long testified that his signature to the power of attorney was genuine, though he had no recollection of the transaction. It was in evidence that the name of John Smith was more common than any other. Witnesses, long resident in Franklin county, Ohio, one a deputy sheriff, testified that they knew no John Smith, except one who was forty-five or fifty years of age, and who was never believed to have been in the war of 1812.

The plaintiff then asked the court to declare the law as follows:

1. The certificate of the justice is prima facie evidence that the deed was executed by the person bearing the name signed to said deed.

2. The deed being subscribed with the name of John Smith, and the certificate showing that John Smith did execute and acknowledge the deed, it is presumed in law that he was the person entitled to the land under the patent.

3. The proof of the witnesses, Long and Shultz, that their signatures to the deed are genuine, is sufficient to prove that the deed was executed as it purports.

4. The deed being acknowledged, and its execution proved, it devolves upon the defendant to show that the person who signed the deed is not the person named in the patent.

5. The possession of the original patent, and a deed from one of the same name, as patentee, with proof of the execution of the deed by the evidence of the acknowledgment, and proof of the handwriting of the subscribing witnesses, is evidence of the identity of the grantor with the patentee, and throws upon the defendant the necessity of proving that they are not the same persons.

The first and third of these were given, and the rest refused, to which an exception was taken. At the instance of the defendant, the court gave the following instructions, to which the plaintiff excepted:

1. It is competent for the defendant to show that the plaintiff's grantor is not in fact the patentee of the land in controversy.

2. Although the plaintiff's grantor is of the same name with the patentee, yet it is necessary for the plaintiff in this case to give other proof of the identity of the plaintiff's grantor with the patentee beside the similarity of name.

There was a judgment for the defendant.

Abell & Stringfellow, for plaintiff in error. 1. The execution of the deed was proved not only by the certificate of acknowledgment, but by the testimony of the subscribing witnesses. The testimony of the subscribing witnesses that they had signed the deed, but had no recollection of the circumstances, instead of rebutting the effect of the acknowledgment, was, of itself, sufficient proof of the execution, even against the maker, on a plea directly denying the execution; much more in this case, when a mere trespasser objects to the admission of the deed. 8 Pick. 143, 150. 19 Wend. 437. 2. Identity of name is prima facie evidence of identity of person. 19 Wend. 437. 5 Cow. 237. 3 Mo. Rep. 227. 6 Peters, 632. 11 ib. 334. 14 ib. 322. 13 Johns. 523. It devolves upon the party objecting to a deed to rebut the presumption of identity of person arising from identity of name. The question of identity is one of fact, to be found by the jury under the direction of the court. 5 Cow. 237, 242. This presumption cannot be rebutted by evidence that there is another person of the same name. It must be shown that such other person executed the deed, or in this case was the patentee. 13 Johns. 523. 9 Cow. 140, 150. In this case, there was no evidence to rebut this presumption of identity.

Leonard, for defendant in error. 1. The evidence in relation to the identity of the plaintiff's grantor with the patentee would have been insufficient, in point of law, to have carried the cause to a jury, had the trial been in that form; and upon that principle, the court was more than justified in giving the defendant's and refusing the plaintiff's instructions. Brown v. Kimball, 25 Wend. 272. Bulkely v. Butler, 2 B. & C. 434. Jones v. Jones, 9 Mees. & Wels. 75. Sewall v. Evans, 4 Ad. & Ell. 625. Middleton v. Sanford, 4 Campb....