Kries v. Holladay-Klotz Land & Lumber Co.
| Decision Date | 11 December 1906 |
| Citation | 98 S.W. 1086,121 Mo. App. 184 |
| Court | Missouri Court of Appeals |
| Parties | KRIES v. HOLLADAY-KLOTZ LAND & LUMBER CO. |
In an action for trespass for cutting and removing timber, plaintiff showed the loss of deeds and the destruction of the county records, and introduced an abstract of title to the land in controversy, which a former recorder of deeds testified having made from an examination of the deed records. Such abstract showed the making of a tax deed to plaintiff's remote grantor, while the title was vested in another. Held, that such abstract was properly admitted as evidence of plaintiff's title as against the sole objection that it was not competent to show transmission by a tax sale, without proof by recitals in the tax deed or evidence aliunde that proper proceedings had been had leading to such tax sale as were requisite to confer on the sheriff a power to sell, as the rule that the burden is on the party asserting the validity of a tax sale to show the necessary steps leading to the sale does not apply to an action between one holding under a tax deed and a mere intruder.
2. EVIDENCE—LOST DOCUMENTS — SECONDARY EVIDENCE.
Destruction of a tax deed by fire having been proved, secondary evidence of its contents was admissible.
3. SAME—PRELIMINARY EVIDENCE.
An abstract introduced in evidence showed a tax deed in plaintiff's chain of title, and a former recorder of deeds testified that he had made the abstract from an examination of the full record of the deeds themselves. The abstract showed the date of execution, acknowledgment, filing, and recording, the book and page where recorded, the consideration paid, and the description of the land. Held that, the deed being lost, there was sufficient evidence of its contents to justify admission of secondary evidence.
Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.
Action by Anna Kries against the Holladay-Klotz Land & Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.
This action was instituted July 10, 1904. It is in the nature of an action of trespass to recover the value of timber alleged to have been cut and removed from plaintiff's land by the defendant company. The land on which the timber stood is in Wayne county, Mo., and is the S. ½ of the N. E. ¼ and the N. ½ of the S. E. ¼ of section 22, township 29, range 26. The answer was a general denial. The jury returned a verdict in plaintiff's favor for $1,369, and, judgment having been entered for that sum, the present appeal was prosecuted by the defendant. The error assigned is the refusal of the court to direct a verdict in defendant's favor. In support of this assignment, defendant's counsel contend there is no proof of possession, actual or constructive, in plaintiff at the time of the alleged trespass. Until the land was denuded by the defendant company, it was covered by a growth of pine timber. Plaintiff purchased it February 13, 1891, taking a warranty deed from Fred H. Bruning and wife. Plaintiff resides in St. Louis, and has resided there, as we understand, since the time of her purchase. In May, 1895, her husband went to Wayne county in her behalf, and had the line of the land run by the county surveyor and the corners established. The timber on the surrounding lands was cut away, but plaintiff's timber was respected until 1899, when it was cut and removed by the defendant company without her knowledge. Plaintiff paid taxes on the land from the time she purchased it, and it was assessed in her name. There is testimony to show the chief officer of the defendant company knew the land belonged to plaintiff, or, at least, that it did not belong to the company. A witness who had been in defendant's service testified that on one occasion, in giving directions where to cut timber, its chief officer stated the company did not own the land from which the timber in controversy was taken, and for the witness to cut no timber on it. But, as said, the defendant subsequently did cut and remove the timber. These facts are proved by testimony for the plaintiff; the testimony for the defendant not going to show any title to the land or right to take the timber, but that, in point of fact, defendant did not take it—a defense which the jury rejected. In support of her title to the land, plaintiff introduced a copy of a patent from the United States to Robert Kirkham, dated September 10, 1859, and conveying the land in controversy; a deed from Jas. D. Wingerd and wife to Fred Bruning and wife, dated January 3, 1888; and a deed from Fred Bruning and wife to plaintiff, dated February 13, 1891, and recorded on February 17th. Plaintiff and her husband testified they had no other deeds. It was proved the courthouse wherein the court and deed records of Wayne county were kept was destroyed by fire in December, 1892. Prior thereto James B. McGhee had been circuit court clerk and ex officio recorder of deeds of Wayne county, and while serving as such, on February 25, 1891, had made for plaintiff an abstract of title to the land in controversy as the title appeared from the records and deeds in his office. He swore he made it from an examination of the indexes to the deed records, which referred him to the pages of the records where the different deeds were found, and from an examination of the full records of the deeds themselves; and that the abstract he made was a true and correct abstract as shown by those records. Though signed by him officially, it is not a document required to be made by law, and does not import accuracy. The abstract was introduced in connection with McGhee's testimony, and is as follows:
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The State of Oklahoma, ex rel. Freeling v. National City Bank of Kansas City
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King v. Sligo Furnace Co.
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