Mariner v. Saunders

• Decision Date: 31 December 1848
• Citation: 5 Gilman 113,10 Ill. 113,1848 WL 4129
• Parties: JOHN L. MARINERv.HIRAM SAUNDERS.
• Court: Illinois Supreme Court

5 Gilman 113

10 Ill. 113

1848 WL 4129 (Ill.)

JOHN L. MARINER

v.HIRAM SAUNDERS.

Supreme Court of Illinois.

December Term, 1848.

EJECTMENT, in the Fulton circuit court, brought by the appellee against the appellant, and heard at the March term, 1848, before the Hon. Norman H. Purple and a jury, when a verdict and judgment were rendered for the plaintiff below.

So much of the evidence in the case as was material to the determination of the questions of law raised by counsel, will be found in the opinion of the court.

R. S. BLACKWELL and C. B. LAWRENCE, for the appellant:

1. Where a party brings ejectment for land, averring that he is “seized in his own demesne as of fee,” he makes an affirmative allegation which he must prove upon the trial by the highest and best evidence in his possession or power. 2 Greenl. Ev. 251, § 303.

It is an established rule of the common law, that no estate of freehold can pass but by deed. Jackson v. Wood, 12 Johns. 73; Rev. Stat. 102, § 1.

Therefore the best evidence in support of his allegation of seizin in fee, is deeds and other documentary evidence of title. These are always presumed to be in his possession or power, and can be easily produced. Mason v. Park, 3 Scam. 533, 4; Jackson v. Todd, 3 Johns. 303.

If he withholds the better evidence, the law presumes that if produced, it would make against the plaintiff. 1 Greenl. Ev. 97, § 82; Tayloe v. Riggs, 1 Peters, 595.

But where such evidence is shown to be unattainable, the presumption of fraud ceases, and secondary evidence is admitted of necessity. U. S. v. Doebler, 1 Baldwin, 521.

Proof of the existence or due execution, and loss of title papers, is sufficient to lay the foundation for the introduction of secondary evidence. 1 Greenl. Ev. 623, § 558.

This evidence is addressed to the court, who are to determine as to its sufficiency. Jackson v. Frier, 16 Johns. 193.

The loss of the instrument is usually proved by circumstantial evidence, direct evidence being but seldom attainable. Taunton Bank v. Richardson, 5 Pick. 442.

The circumstances usually relied upon to establish the loss of the instrument, is diligent search in those places where it would most likely be found, and such is the character of the evidence introduced and relied upon in the trial of the case at bar. Palmer v. Logan, 3 Scam. 56; Rogers v. Miller, 4 do. 334.

Is the evidence offered in this case sufficient to establish the loss of the deeds? Unless it is, the court below erred in permitting evidence of their execution and contents to go to the jury. Rees v. Lawless, 4 Littell, 219; Jackson v. Frier, 16 Johns. 193.

Where there are suspicious circumstances, the courts are more strict in requiring proof of loss. Renner v. Bank of Columbia, 5 Peters Cond. R. 700; Minor v. Tillotson, 7 Peters, 99; 5 Eng. Com. Law R. 291. All places where the supposed deed would most probably be found must be thoroughly searched. Jackson v. Hasbrouck, 12 Johns. 192; Dan v. Brown, 4 Cowen, 483.

And all persons who would probably know anything about the lost instrument must be inquired of. Jackson v. Hasbrouck, 12 Johns. 192; 2 Eng. Com. Law R. 328.

Presumption that deed is in hands of Walters' executor or the guardian of Ruth Walters, because legally entitled to it. Kent v. Weld, 2 Fairf. 461.

Hearsay evidence of loss is inadmissible. The King v. Inhabitants of Denio, 14 Eng. Com. Law R. 102; Chapin v. Taft, 18 Pick. 379; Dan v. Brown, 4 Cowen, 483; Angell v. Felton, 8 Johns. 149.

The persons who made the search must be called. Taunton Bank v. Richardson, 5 Pick. 436; Jackson v. Cris, 11 Johns. 437.

Where the instrument is traced to the hands of a particular person, he must be called and sworn to give an account of it. The King v. The Inhabitants of Castleton, 6 T. R. 236; 3 Johns. 300; Parkins v. Cobbett, 11 Eng. Com. Law R. 394; The King v. The Inhabitants of Denio, 14 do. 102; Jackson v. Hasbrouck, 12 Johns. 192; Woods v. Garrett, 11 New Hamp. 442; Poignaud v. Smith, 8 Pick. 278; The Governor v. Barkley, 4 Hawks, 20, cited in 2 U. S. Dig. 265, § 1410.

2. The execution of the originals ought to have been proved, before evidence of their contents was admissible. Elmendorf v. Carmichael 3 Littell, 479; Jackson v. Frier, 16 Johns. 196; 3 do. 300.

The subscribing witnesses should have been produced to prove the execution of the lost deed. 1 Greenl. Ev. 636, § 569; ib. 643, § 576; Gillespie v. Osburn, 3 A. K. Marsh. 80; Whittemore v. Brooks, 1 Greenl. 57; Morgan v. Marshall, 7 J. J. Marsh. 317; Griffith v. Husten, 7 do. 387; Kelsey v. Hammer, 18 Conn. 317, 318; Gillis v. Smither, 3 Eng. Com. Law R. 460; Kimball v. Morrill, 4 Greenl. 370; 4 Cowen, 489.

3. The next best evidence was a copy from the record, and should have been produced; the parol evidence was therefore inadmissible. Brewster v. Countryman, 12 Wend. 446; 2 Peters' Dig. 222, § 767; ib. 233, § 772; Cowan v. The State, 4 Blackf. 241; Rhind v. Wilkinson, 2 Taunt. 237; Hilts v. Colvin, 14 Johns. 182; 1 Greenl. Ev. § 84, note; Dunlap v. Berry, 4 Scam. 330; Renner v. Bank of Columbia, 5 Peters' Cond. R. 700; United States v. Britton, 2 Mason, 464, cited in 5 Peters' Cond. R. 261, note; Riggs v. Tayloe, 9 Wheat. 483; 5 Peters' Cond. R. 647.

4. The evidence of the contents of the lost deed was too vague and uncertain to warrant the jury in rendering a verdict for the appellee. United States v. Britton, 2 Mason, 464; 5 Peters' Cond. R. 261; Tayloe v. Riggs, 1 Peters, 600.

5. The declaration avers, and the verdict finds that appellee was seized in fee. The evidence does not disclose what interest he had in the premises, and the verdict is therefore clearly not warranted by the testimony.

6. The plaintiff claims, and the verdict finds for him title to the whole tract of land. The evidence only shows his title to an undivided moiety.

The patentee conveyed to Mooney and wife. The law is well settled that a conveyance to husband and wife does not constitute them joint tenants or tenants in common; they constituting but one person in law, they can not take by moieties, but both are seized of the entirety, the consequence of which is, that neither can alien without the consent of the other, and on the death of one, the estate survives to the other. 2 Black. Com. 182; Coke's Litt. 187; Doe, ex dem. Freestone v. Parrott, 5 T. R. 652; Shaw v. Hersey, 5 Mass. 521; Fox v. Fletcher, 8 Mass. 274; Jackson v. Stevens, 16 Johns. 115; Sergeant v. Steinberger, 1-4 Ohio Cond. R. 372; Ross v. Garrison, 1 Dana, 35; Motley v. Whittemore, 2 Dev. & Bat. 537; Doe v. Howland, 8 Cowen, 277; Den v. Hardenburg, 5 Halst. 42.

It nowhere appears in evidence that Mooney and wife executed and acknowledged the deed to Walters in due form of law, and that she was of age at the time the deed was executed. This must appear or her interest does not pass. Territorial Laws, 1807, p. 97-8; Elliott v. Piersoll, 1 Peters, 328; Hepburn v. Dubois, 12 Peters, 345; Lewis v. Waters, 3 Har. & McHen. 430; Payne v. Parker, 1 Fairf. 178; Rhea v. Rhenner, 1 Peters, 109.

O. H. BROWNING and N. BUSHNELL, for the appellee.

The Opinion of the Court was delivered by CATON, J.

We are first to inquire whether the proof of the loss of the two deeds, from McCoy to Mooney and wife, and from them to Walters, was sufficient to admit secondary evidence of their contents. The plaintiff swore that the deeds were never in his possession, although he had been in pursuit of them for four years; that he had searched in the recorder's office, where he was informed that one Gerald might have had them; on applying to Gerald he was informed that the deeds had been taken from the recorder's office by the agent of Walters, to take them to him in New York, and that the agent had died in Indiana on his way thither; that he had sent an agent to New York to obtain proof on another branch of the case, and to inquire of the guardian of Ruth Walters for these deeds, who was unable to find them. He then employed an agent in New York who wrote him that he had made a thorough search for the deeds, but without success. He made no personal examination except at the recorder's office. Bryant, the agent, swore that he went to New York and inquired of the guardian of Ruth for the deeds, who stated that he could not find them after diligent search. Upon this the court admitted secondary evidence of their contents.

From the nature of the subject there is some difficulty in laying down a general rule, defining the extent and vigilance of the search which a party must make, before the court may conclude that the paper is destroyed or lost, so as to admit secondary evidence of its contents. As a general rule, however, we may say, that when from the ownership, nature or objects of a paper, it has properly a particular place of deposit, or where from the evidence it is shown to have been in a particular place or in particular hands, then that place must be searched by the witness, proving the loss, or the person produced into whose hands it has been traced. The extent of the search to be made in such place or by such person, must depend in a great degree upon circumstances. Ordinarily, it is not sufficient that the paper is not found in its usual place of deposit, but all the papers in the office or place should be examined. But this need not always be done, when from the extent of the archives or office, it would be impracticable, and the order in which it is kept a more limited examination is equally satisfactory. In all cases the search must be made with the utmost good faith, and should be as thorough and vigilant, as, if the paper were not found, its benefit would be lost. On the whole, the court must be satisfied that the paper is destroyed, or can not be found. It is true, the party need not search every possible place where it might be, for then the search might be interminable; but he must search every place were there is a reasonable probability that it may be found. Nor must he produce every man...