Geer v. Missouri Lumber And Mining Company
| Decision Date | 31 March 1896 |
| Parties | Geer et al., Appellants, v. Missouri Lumber and Mining Company et al |
| Court | Missouri Supreme Court |
Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.
Affirmed.
L. B Woodside for appellants.
(1) The court erred in excluding the photographic copies of the affidavits of Michael Leane, William K. Annis, James Beard William Murphy, which were made by those parties as a foundation for the entries of the different tracts of land in controversy. State v. Clinton, 67 Mo. 384; 1 Greenlf. on Ev. [12 Ed.], p. 27, sec. 21, p. 614, sec. 570 p. 623, sec. 578, p. 625, sec. 580; Graduation Act, 1854. (2) If the original affidavits would have been admissible as standards of comparison, the photographic copies could properly be used in their stead, as they were papers which plaintiff could not produce in court. Howard v. Russell, 75 Tex. 571. Old writings containing signatures of parties thereto, which are found in proper depositories, are presumed to be genuine, and they or photographic copies may be used in court to prove the genuine signature of parties signing them. Howard v. Russell, supra. (3) Even if all the testimony offered by plaintiff to impeach the validity of the five deeds was incompetent, yet the court erred in instructing the jury that plaintiff could not recover under the evidence. They, however, contend that they can hold this tract without any deed from Leane, from the fact that the suit and judgment under which plaintiff claims title was against Michael Lane. If the name used in the tax proceedings is idem sonans with that of the owner of the land, the title will pass. Wheeling v. Weaver, 93 Mo. 430; State v. Havley, 21 Mo. 498. Where two names have the same derivation and are taken in common usage to be the same, though they differ in sound, the use of the one for the other is not a misnomer. State v. Hutson, 15 Mo. 512; State v. Wilkerson, 13 Mo. 91; State v. Blankinship, 21 Mo. 504. Two names are idem sonans, however their orthography may be, if the attentive ear finds difficulty in distinguishing them when pronounced, or common and long continued usage, by corruption or abbreviation, made them identical in pronunciation. Robson v. Thomas, 55 Mo. 581. We are unable to find Michael Leane or any one who ever knew him, and, therefore, can not say how he pronounced his name, and can only refer the court to similar names with proper pronunciation. "McLean" is pronounced as though spelled "McLane." Webster's Unabridged Dictionary [Ed. 1876], Pronunciation of Modern Names; Ed. 1889, p. 1823. Neither Michael nor his grantees ought to be heard to say that "Leane" and "Lane" are not idem sonans. (4) Although the deeds were recorded after the land was attached to Shannon county and the record may not have been notice to purchasers, yet it was evidence of the transfer of the land. R. S. 1889, sec. 4869. Defendant's deed purporting to be made by Annis was not acknowledged. The want of acknowledgment may be cured by section 4864, Revised Statutes, 1889, in so far as to make it notice to purchasers, but said section does not make such a deed any evidence of a conveyance of title. Section 4865 expressly provides that such a deed shall not be received in evidence until the execution of the original shall be duly proved. Section 4864 was never intended to give validity to a paper which did not appear upon the records. (5) James Beard, of St. Louis county, Missouri, entered the land and in less than three months thereafter James Beard, of Sterling, Illinois, conveyed it, and it ought not to be presumed that the patentee and the grantor were the same person.
Dinning & Byrns for respondents.
(1) The deeds introduced by the defendants show title to the land in question in the Missouri Lumber and Mining Company, and it has deeded to codefendant, the Ozark Lumber Company, since the commencement of this suit. The deeds read in evidence by plaintiffs conveyed no title to them. The deed from William K. Annis to Pettijohn, and the mean conveyances down to plaintiffs, were never recorded in Shannon county, and the record of these deeds in Oregon county was no notice to anybody. The deed from Beard to Anderson was recorded in 1873, long after the conveyance from Anderson to Auld; also the deed from Anderson to Onions was recorded long after the deed from Beard to Auld had been recorded. Gwynn v. Frazier, 33 Mo. 89. (2) Suit against Michael Lane for the collection of back taxes on lands entered by him did not affect the title to the land in controversy for two reasons: The word L-a-n-e can not be pronounced L-e-a-n-e. Webster, Worcester and the Century, in fact every dictionary that we have found, pronounce L-e-a-n, L-e-e-n, and the addition of "e" to this name would not cause it to be pronounced "L-a-n-e." (3) The court did not err in refusing to admit in evidence copies of affidavits purporting to have been made by the patentees. These are called "photolithographic" copies, but they are none the less a copy. There is no law authorizing the introduction of these copies for any purpose except to prove the contents of the original in a case where that would be relevant. They were sought to be introduced for the purpose of comparing the handwriting of the original deeds made by the patentees with the names as they appeared on the copies without any preliminary proof. Blair v. Phelan, 118 Mass. 421; Com. v. Eastman, 1 Cush. 207; Spottiswood v. Weir, 66 Cal. 525; Cohen v. Teller, 93 Pa. 123; Ewing v. State, 81 Tex. 172; 1 Whart. Ev., sec. 8120; Taylor Will Case, 10 Abb. Pr. (N. S.) 300; Reddin v. Gates, 52 Iowa 210; Eborn v. Zimpelman, 42 Tex. 543; Maclean v. Scripps, 52 Mich. 214; Hynes v. McDermott, 82 N.Y. 41; Miller v. Johnson, 27 Md. 36; Tome v. Parksburg, 39 Md. 36; Marcy v. Barnes, 16 Gray, 160; Rogers on Expert Testimony [2 Ed.], sec. 140; 51 N.W. 1132; Lawson on Expert Ev., pp. 414, 415. (4) The deed from William E. Annis to Martin C. Auld was thirty years old, and had been of record twenty-three years, and was admissible without proof of its execution. Sec. 570, 1 Greenleaf. It came down to the last purchaser and was found in his possession, and therefore free from suspicion. The grantor in said deed is estopped from denying it. Hoge v. Hubb, 94 Mo. 489. (5) We assume that the question is settled in Missouri that a man does not lose title to his land because the record of his deed is burned. Crane v. Dameron, 98 Mo. 567.
This is an action of ejectment to recover the following land situate in Shannon county: North half, section 8, township 26, range 3; east half, section 29, township 26, range 3; west half, section 9, township 26, range 3; east half, section 25, township 26, range 3; southeast quarter, section 8, township 26, range 3.
Plaintiffs claim title under deeds made by the sheriff of said county in 1881, under judgments for taxes. Defendants claim under deeds from the patentees of the land to one Auld. These last named deeds were dated in the sixties, and were recorded in Shannon county in 1870. It seems that after this the records of the county were burned and the deeds were not re-recorded until after the tax sales under which plaintiffs claim.
The suits for taxes upon three of those tracts were against the original patentees. The other two suits were against grantees of the patentees, under deeds prior in date to those made to Auld, but one of them was recorded in Oregon instead of Shannon county, and the other was not recorded until after the deed to Auld to the same land had been recorded. Neither Auld nor his grantees were made parties to any of these suits. The township in which these lands were situated was formerly a part of Oregon county, but was detached therefrom and was added to Shannon county before the deeds under which plaintiffs claim were recorded.
Plaintiffs undertook to show that the deeds from the patentees to Auld under which defendants claim were forgeries. The papers offered in evidence from which to make comparisons with the signatures to the deeds were rejected by the court.
Plaintiff asked several instructions which were refused, and the court gave one at the request of defendants to the effect that under the pleadings and evidence the verdict should be for them. The judgment was for defendants and plaintiffs appealed. Other facts necessary to an understanding of the questions discussed will appear in the opinion.
I. As shown in the statement the suits for taxes due upon three of the tracts of land were prosecuted against the original patentees. These patentees had previously conveyed the land to defendant's grantors by deeds which had been duly recorded in Shannon county, but prior to the institution of the tax suit the records of the county, including those containing a record of these deeds, were destroyed by fire, and the record had not been restored or the deeds re-recorded. So when the suits were commenced there was no existing record of a conveyance from the parties, who were made defendants. On this state of facts plaintiffs asked the court to give this declaration of law:
The refusal of this instruction is assigned as error.
Plaintiffs concede that the exact point was ruled against them in Crane v. Dameron, 98 Mo. 567, 12 S.W. 251, but they say...
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