Hayden v. Mitchell
| Decision Date | 01 March 1898 |
| Citation | 30 S.E. 287,103 Ga. 431 |
| Parties | HAYDEN v. MITCHELL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A copy of an instrument required by law to be registered, which has been taken from the proper registry, is admissible in evidence when the loss or destruction of the original has been satisfactorily shown. The preliminary inquiry in relation to such loss or destruction is addressed to the sound discretion of the presiding judge, and a greater or less degree of diligence will be demanded, according to the circumstances, and the character, nature and age of the documents. The fact that a due registration appears in the proper place is presumptive evidence of the existance of an original; and where such appears, and the evidence shows that a great many years have elapsed since the date of its execution, that the parties to it are dead, and that diligent search has been made among the papers belonging both to living and deceased persons who were entitled to its custody such loss or destruction is sufficiently shown to admit the copy as secondary evidence.
2. Where the registry law required a marriage contract to be recorded in the office of the clerk of the superior court of the county of the residence of the husband within three months after its execution, and such contract recited that at the date of its execution the residence of the prospective husband was in a specified county, a record of the instrument made after the marriage, and within the time prescribed, was properly made in another county, when the marriage was not consummated until after the lapse of one month from the execution of the contract, and from the date of and subsequent to the marriage the husband continuously resided in the latter county.
3. The validity of a contract executed on Sunday is to be determined alone by the statute law in force at the time of the execution of the contract; and when the statute governing the question declares that "no tradesman, artificer workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, work, or business, of their ordinary calling upon the Lord's day (works of charity and necessity excepted),"'-Cobb's New Dig. p 853,-only those contracts which may be properly included as coming within the ordinary callings of the parties thereto are affected by the inhibition of the statute. (a) A marriage contract is not one which falls within the "ordinary calling" of the parties to the same.
4. The case of Sanders v. Johnson, 29 Ga. 526, reviewed and affirmed.
Error from superior court, Fulton county; J.H. Lumpkin, Judge.
Action by Reuben C. Hayden against Clara Mitchell, executrix, to recover realty. From a judgment for defendant, plaintiff brings error. Reversed.
Dorsey, Brewster & Howell, for plaintiff in error.
E.M. & G.F. Mitchell and Alexander & Lambdin, for defendant in error.
The plaintiff is one of the children of Harriett Eliza Hayden and J.A. Hayden, and a grandson of Lucinda Cone, widow of Reuben Cone, who intermarried with W.H. Underwood. He brought his action to recover a one-ninth undivided interest in certain land in the city of Atlanta. He relied in part for a recovery upon an alleged marriage contract which it was claimed was entered into, after the death or Reuben Cone, between W.H. Underwood, of Floyd county, and Lucinda Cone, of Fultion County. It was alleged by the plaintiff that the original had been lost, and he offered to introduce in evidence a copy of such contract from the records of Fulton county. The contract in question purports to have been executed in Fulton county, Ga., and is dated November 5, 1854. It recites that William H. Underwood, of Floyd county, state of Georgia, in consideration of a marriage to be had and solemnized between him and Lucinda Cone, of Fulton county, does convenant, grant, and agree, among other things, that certain real estate in the city of Atlanta, Fulton county, Ga., which belonged to the estate of Reuben Cone, the late husband of Lucinda Cone; and which has not been sold since his death, and which is in the possession of Julius A. Hayden, tenant in co-parcenary with Lucinda Cone, as equal heirs of Reuben Cone, and all of the property belonging to Lucinda, together with the profits of the same, shall form and remain her separate property and estate during her life, and then to be the property in fee simple of Harriett Eliza Hayden and her children, and shall not be subject to the debts of said Underwood, nor be sold or conveyed by him, nor in any manner controlled by him, but that the right and title to this property shall be vested in Julius A. Hayden and John Glen for the sole and separate use of said Lucinda. It was further covenanted and agreed that said Lucinda might dispose of such property by will to Harriett Eliza Hayden and her children, if she chooses to do so, after marriage. From the copy, this contract purports to have been duly executed, and was recorded on the 7th day of December, 1854. It appears to have been probated on the oath of one of the witnesses on the 6th day of December, 1854. It appeared that in the record book in the clerk's office, and near the bottom of one or two of the pages from which this copy was taken, from long use and handling a few of the words of the contract, as there recorded, had become somewhat defaced,-some of the words illegible, and a few altogether missing,-small portions of the page being worn off. As a foundation for the introduction of this copy as secondary evidence, R.C. Hayden, the plaintiff, testified that he did not have in his possession the original marriage contract between his grandmother, Mrs. Underwood, and Judge Underwood; that he had looked thoroughly for it, but it was not in any of the papers that his father had, nor in those of his mother or grandmother; that he had made inquiry of them and others, and had not been able to find it; that he did not know, and could form no idea, where it was; that Mrs. Lucinda Underwood died in 1873; that his mother was a daughter of Reuben Cone and Lucinda Cone, afterwards Lucinda Underwood; that she was the only child; that his mother has eight living children, and is living herself; that his father died in February, 1890; that John Glen died in 1896, that plaintiff is 26 years old. In connection with the copy contract from the record offered in evidence, the plaintiff also introduced a witness, Anderson, who testified (a certified copy being waived) that he made this copy of the marriage contract from Record Book A of the records of Fulton county: that it was copied correctly, and was made about March, 1887. He took two books (that is, Record Book A, and the book into which marriage contracts were recorded), and from the latter obtained the few illegible words which had become partially erased in Record Book A. It was agreed between the parties that W.H. Underwood died between the year 1856 and 1859. Evidence was also introduced showing title from the state of Georgia to Reuben Cone to the land in question; the latter taking the title in the year 1838. Evidence was also introduced tending to show that Judge Underwood lived in Atlanta, Fulton county, Ga., from the date of his marriage to Mrs. Cone, and that he and his wife lived in said city until their death. A certified copy of the marriage license issued to Judge Underwood and Mrs. Cone by the ordinary of Fulton county, under date of December 5, 1854, together with a certificate of the pastor of the Presbyterian Church in Atlanta, of the same date, that he had married the parties, were also introduced in evidence. After the introduction of this evidence, the plaintiff tendered a copy of the record of the marriage contract from Book A of the records of Fultion county, Ga., and, together with the same, the copy made by Anderson in 1887, to explain the illegible parts of the marriage contract as it at that time appeared on the record. To the introduction of these papers the defendant objected on several grounds. Those necessary to be considered here are: These several grounds will be considered in their order.
1. Should the copy contract have been excluded because there was no sufficient proof of the existence of a genuine original? We think not. Certainly, before secondary evidence, in the form of a copy from the record, of a paper required to be registered, may be admitted in evidence, the existence of the original must be proven, as well as its destruction or loss. A marriage contract, in order to be effective, is required to be registered, under the laws of this state; and this court in the case of Eady v. Shivy, 40 Ga. 684, held that "the existence, genuineness, and contents of a deed shown to be lost or destroyed may be proven by a certified copy of the record of it, if it has been properly and legally probated for record." Under this established rule, which is founded on reason, and is the result of legal registration, when such is required, we think that the existence and execution of the marriage contract were sufficiently shown to admit a proper copy as evidence. The rule as to admission of secondary evidence is grounded on the necessity of the case, and, as a rule, it can be admitted only when there is no stronger and better proof of the fact which is sought to be established. Civ. Code, § 5164. And a...
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