McCleery v. Lewis

• Decision Date: 26 February 1908
• Citation: 70 A. 540,104 Me. 33
• Parties: McCLEERY v. LEWIS.
• Court: Maine Supreme Court

70 A. 540

104 Me. 33

McCLEERY

v. LEWIS.

Supreme Judicial Court of Maine.

Feb. 26, 1908.

(Official.)

Exceptions from Supreme Judicial Court, Franklin County.

Real action by Eliza A. McCleery against Woodard Lewis. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Real action brought by the plaintiff, to recover one-half part in common and undivided of certain real estate in New Vineyard, Franklin county, from the defendant, who was the co-tenant thereof, together with the sum of $300 for rents and profits during the six years preceding the date of the writ. Plea, the general issue, with brief statement as follows: "And for brief statement of special matter of defense the defendant says: 'That he does not admit any title in the plaintiff to the premises set forth in the plaintiff's writ and declaration, nor that the plaintiff ever obtained title to the same, nor that the said plaintiff ever held title to the same, or any part thereof; and, if she did hold a deed thereof, the defendant calls for proof of the same and of the execution thereof.' The defendant also filed a claim under the statute for betterments."

The plaintiff claimed title under a supposed deed, dated October 27, 1855, and duly recorded in the Franklin county registry of deeds, Book 32, p. 167, given by one Joshua Miller, purporting to convey to Rispah Hewey, the mother of the plaintiff, a life estate in the premises, with remainder to the plaintiff and others. Rispah Hewey died several years before the commencement of the plaintiff's action.

The plaintiff was not able to produce the original deed, if any such ever existed, neither was she able to produce any witness that ever saw such a deed or ever heard such an one read. Rev. St. c 84, § 125, reads as follows:

"In all actions touching the reality, or in which the title to real estate is material to the issue, and where original deeds would be admissible, attested copies of such deeds from the registry may be used in evidence, without proof of their execution, when the party offering such copy is not a grantee in the deed, nor claims as heir, nor justifies as servant of the grantee or his heirs." In accordance with the provisions of this statute the plaintiff then produced an attested copy of the supposed deed from Joshua Miller, and offered the same in evidence. When the copy was offered, the following conversation between the presiding justice and counsel was had:

"Mr. Holman: I now offer a quitclaim deed from Joshua Miller to Rispah Hewey, Eliza Hewey (the plaintiff), Woodard Lewis, and Thomas Lewis.

"The Court: That is a copy, I suppose.

"Mr. Holman: Yes, a certified copy from the record.

"Mr. Butler: I object.

"Mr. Holman: It is dated the 27th day of October, 1855.

"Mr. Butler: I object.

"The Court: I will hear you on that proposition.

"Mr. Butler: My objection is, your Honor, that in all cases, both under the statute and rules of court, that where the party claims under an original deed, or as the heir of a grantee in an original deed, that before an office copy is admissible that plaintiff must prove the execution and genuineness of the original deed, and that the same has been lost, and that he or she has used every reasonable effort to produce it.

"Mr. Holman: My reply to that is that this deed was given in 1855, a good many years ago. The witnesses, as far as we know, are all dead, and one of them we know is dead, and it wasn't executed here, hence it becomes an ancient deed. We have proved the death of the party under whom we claim. We have been to the expense to see every one of her children, and talk with them, and brought them here to court. I have done everything I know how to do. It is entirely impossible for me to prove the deed any more than it is now. I don't know any imaginable way. I have tried to think of every way posBible to prove the deed further than what I have done, and I don't know how I can do it any more.

"The Court: Have you investigated, Mr. Holman, to see whether the witnesses were dead, or the magistrate was alive or dead?

"Mr. Holman: Yes, we have, every one of them. Plamentine Daggett was one of the witnesses, and died a great many years ago, and the deed was executed in Penobscot county. I know nothing about that. The deed was executed 52 years ago. As I understand the law, the presumption is that a man—the average man, 30 years of age—when he would be old enough to execute a deed, that he would be very aged, and as 1 understood the authorities, and I have looked them up carefully in that respect in my office, and my judgment was that I didn't have to go so far as that on so ancient a deed.

"The Court: You don't produce an ancient deed.

"Mr. Holman: The record of it.

"The Court: It is a copy of what may have been an ancient deed, or would be if it was found.

"Mr. Holman: Mr. Daggett was one of the witnesses. We can show he has been dead a great many years.

"The Court: Let's see your copy. How about George W. Whitney? Oh, that is the justice.

"Mr. Holman: We don't know anything about him. He must be over 80 years of age, if living, and probably was dead years ago, and my woman was poor, and I didn't feel like going to the expense, and didn't think it would be necessary.

"The Court: Of course an ancient deed, if you have shown it is in existence, and the parties purporting to have executed it as parties, or attested it as witnesses, are not producible, the deed prima facie proves itself. That is, the very fact of its ancientness. But you don't produce it. You only produce what purports to be an office copy.

"Mr. Holman: I gave them notice to produce the deed, and have shown that the deed went...