Hubbard v. Gilpin

• Decision Date: 31 August 1874
• Parties: GEORGE W. HUBBARD, Appellant, v. JOSEPH B. GILPIN, Respondent.
• Court: Missouri Supreme Court

57 Mo. 441

GEORGE W. HUBBARD, Appellant,

v.JOSEPH B. GILPIN, Respondent.

Supreme Court of Missouri.

August Term, 1874.

Appeal from Carroll Circuit Court.

Hale & Eads, for Appellant.

I. The court committed error in admitting in evidence the copy of the deed from Burrill to Hobly. This deed was made in 1819 and recorded the same year, but was not acknowledged in accordance with the laws of this State. In order to make such a copy admissible, it was necessary that plaintiff prove the loss or destruction of the original, together with law of place where made. (Barton vs. Murrain, 27 Mo., 235.)

II. The copy was not admissible, though the record is over thirty years old. (Crispen vs. Hannavan, 50 Mo., 415.)

III. The court improperly admitted the copies of Hobly's will. The record of Hobly's will and probate in Massachusetts, should have been recorded in the office of the county clerk of Carroll county. (See §§ 25-28, Statute of Wills.)

IV. The court improperly excluded the tax deed of the Carroll county land. The deed from Burrill to Hobly was not acknowledged in accordance with the laws of Missouri. The assessor of Missouri was not bound to know the laws of Massachusetts. Hence, Burrill was the apparent owner, and the land was properly assessed.

L. H. Waters and Ray & Ray, for Respondent.

I. The loss of the original deed from Mansfield Burrill to William Hobly was sufficiently proven. (4 Kent, 625; 5 Scam., 64)

II. The certified copy of the record of the deed from Burrill to Hobly is admissible in evidence under § 36, ch. 143, Wagn. Stat., as amended March 22, 1873, (Laws 1873, p. 44, § 1). As the law stood when this cause was tried in the court below, the record offered being of a deed for military bounty land, was not admissible under § 36, ch. 143, Wagn. Stat. (Ryder vs. Fash, 50 Mo., 476; Crispen vs. Hannavan, Id., 415.) But though error may have been committed by the court below on the then state of statutory law, yet, if by subsequent legislation such change has been made in the then existing law, that, if the judgment were reversed, the court below, in virtue of the new statute, would have to give the same judgment, this court will affirm. (Pugh vs. McCormick, 4 Wall., 361.)

III. The collector's deed to the defendant was properly rejected. The sale was for the taxes of 1860, assessed under the law of 1855, which required that the land should be assessed to the person appearing to be the owner at the time of the assessment. (R. S. 1855, p. 1330, § 21; Laws 1859, p. 89, §§ 1-2.) Where the statute requires the assessment to be in the name of the owner, a non-compliance in that respect will vitiate the sale. (Carmichael vs. Aiken, 13 Lou., 205; Yancey vs. Hopkins, 1 Mun., p. 419; Johnson vs. McIntire, 1 Bibb, 295; Merritt vs. Thompson, 13 Ill., 716; Barker vs. Blake, 36 Me., 433; Abbott vs. Lindenbower, 42 Mo., 162; Barker vs. Hesseltine, 27 Me., 354; Moore vs. Brown, 11 How., 414; Farrar vs. Eastman, 1 Fairf., 191; Burchard vs. Hubbard, 11 Ohio, 316.)

IV. The deed fails to recite the notice of sale, and for that reason is void. (Abbot vs. Doling, 49 Mo., 302.)

NAPTON, Judge, delivered the opinion of the court.

This was a suit in ejectment, commenced in 1868, to recover possession of a tract of land in Carroll county.

The title of the plaintiff was deduced from a patent from the United States to one Burrill, dated Feb. 5, 1819; a deed from Burrill to one Hobly, dated Feb. 27, 1819; a conveyance by will from Hobly to his daughter, Sarah W. Hobly; the marriage of Sarah W. to one Gilmore; the death of Gilmore in 1856, and a deed from Mrs. Gilmore to plaintiff in 1858.

The defendant relied for his defense, on a deed from the collector of Carroll county to him for the land in dispute, dated Feb. 29, 1868.

Objections were made in detail to all the documentary evidence offered by plaintiff in support of his title, but these objections were overruled. The court rejected the collector's deed, because the assessment was not against the owner, real or supposed, at the date of the assessment; and thus the judgment of the court was for the plaintiff.

In reviewing the judgment we do not deem it necessary to notice all the objections to the plaintiff's title, since only a few of them are maintained here, and we will only refer to such as are urged in this court.

Objections are made in the brief of the counsel for the appellant, to the admission of the copy of the deed from Burrill to Hobly. This copy was admitted under sections 35, 36, 37 and 38 of the act concerning Conveyances; and the case of Barton vs. Murrain, (27 Mo., 235) is cited to show its inadmissibility, because of the insufficient proofs of loss. The proof in this case, however, was satisfactory to the judge who tried the case; and we think was properly so considered. We could not well conceive of any proof which would be more so, in regard to the loss or destruction of the original deed. Search was made by the proper persons and in the proper places, and in this respect, the facts were totally dissimilar o those in Barton vs. Murrain.

In regard to other objections, the act of March 22d, 1873, seems to be a conclusive answer. The deed was more than thirty years old on the records, and therefore, no proof of its execution in conformity to the laws of Massachusetts was required--though such proof was given--and although this act was not passed when the case was tried, yet this court could not reverse a judgment and send a case back to be tried again, when it is apparent that the same judgment already given must be repeated. This was decided in Totten vs. James, (55 Mo., 496); and the same...