Gwynn v. Frazier

• Citation: 33 Mo. 89
• Parties: JOHN R. GWYNN et al., Appellants, v. THOMPSON FRAZIER, Respondent.
• Decision Date: 31 October 1862
• Court: United States State Supreme Court of Missouri

33 Mo. 89

JOHN R. GWYNN et al., Appellants,

v.THOMPSON FRAZIER, Respondent.

Supreme Court of Missouri.

October Term, 1862.

Appeal from Jefferson Circuit Court.

T. C. Fletcher, for appellants.

I. The jury alone had the right to pass upon the question of fact raised by the defendant. (See Flournoy v. Warden, 17 Mo. 435.)

II. Although the deed may not have been recorded in the county where the land was situated, the affidavit of the loss of the original being read, parol evidence was admissible of the contents; much more, was a copy of the only copy that could be produced. (See Jackson v. Rice, 3 Wend. 180; Lessee of Scott v. Leather, 3 Yeates, Penn. 184.) Being found where it might naturally and reasonably be expected to be, it was admissible as a circumstance going to show the existence of a deed, or from which the jury might presume a deed. (1 Greenl. 188.) It was acknowledged before Oliver, a justice of the peace, who was also recorder, and was recorded by him. More than thirty years having elapsed, the witnesses are presumed to be dead. (9 Peters, 663.) Whether a conveyance could be presumed from the circumstances is a question of fact for the jury. (Blake v. Davis, 20 Ohio, 231, and cases there cited.)

T. C. Johnson, for respondent.

BATES, Judge, delivered the opinion of the court.

This was an action of ejectment for a tract of land in Jefferson county.

The land was originally included within the county of Ste. Genevieve.

By an act of the Territorial Legislature, passed on the 8th day of December, 1818, and taking effect upon that day, the county of Jefferson was erected, and it was provided in the act that from and after the first day of January, 1819, the county of Jefferson should be vested with all the powers, &c., of a separate and distinct county, &c.

The county of Jefferson was formed of former portions of the counties of St. Louis and Ste. Genevieve, and was by the act described as bounded in part as follows: “Beginning at a point in the middle of the main channel of the Mississippi river opposite the mouth of a creek on the west bank of said river called Isle au Bois; thence to the mouth of said creek, and up the principal northern branch thereof to its source; thence in a direct line to the source of a creek known by the name of Hazel Run; thence,” &c. (1 Ter. Laws, 554.)

In the progress of the trial of this case the plaintiffs offered in evidence a certified copy of a deed from James Cox to William Gwynn (of John) under whom the plaintiffs claimed title, which deed was dated November 25th, 1818, and was acknowledged and recorded in Ste. Genevieve county on the 25th day of January, 1819.

The defendant objected to the deed being given in evidence, because he alleged the same was recorded in Ste. Genevieve county, when the land at the time the deed was recorded lay in Jefferson county, and offered and gave to the court testimony to sustain his objection. Oscar Dover testified that he surveyed the boundary line between Jefferson and Ste. Genevieve counties under an act passed in 1849; that he did not know precisely where was the source of Isle au Bois creek, nor that of Hazel Run; that before he surveyed the line there were always disputes among the people near the line as to which county they lived in; that he never heard any dispute as to the land in controversy--it was considered in Jefferson county;...