Musick v. Barney

• Citation: 49 Mo. 458
• Parties: LEFREMORE C. MUSICK, Respondent, v. CHARLES BARNEY, Appellant.
• Decision Date: 31 March 1872
• Court: United States State Supreme Court of Missouri

49 Mo. 458

LEFREMORE C. MUSICK, Respondent,

v.CHARLES BARNEY, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from Lincoln Circuit Court.

Dwyer & Music, for respondent, cited 2 Stark. Ev. 515; 5 Phil. Ev. 265; Ewing v. Burnet, 11 Pet. 41; Ellicott v. Pearl, 10 Pet. 442; Menkens v. Ovenhouse, 22 Mo. 70; Williams v. Donegan, 20 Mo. 186; Draper v. Shoot, 25 Mo. 197; City of St. Louis v. Gorman, 29 Mo. 593; De Grow v. Taylor, 37 Mo. 310; City of Carondelet v. Simon, id. 408;Schultz v. Lindell, 30 Mo. 310; Wall et al. v. Schindler, 47 Mo. 282.

J. B. Henderson, for appellant.

BLISS, Judge, delivered the opinion of the court.

Both parties claim through one Herrick: the plaintiff, by virtue of an execution sale and purchase by one Fiske, his father's grantor, and also by adverse enjoyment for over ten years; and the defendant by a deed executed previous to the judgment and sale. Both sales were in 1837. The land is unimproved, at least until recently, by defendant, and there have been several conveyances in the chain through which each party traces his title, which need not be considered. The plaintiff does not seem to deny that defendant's title would be the best, had the original deed from Herrick been properly acknowledged, and had there been no such adverse possession as would alienate it.

First, as to the effect of the deed and the propriety of admitting it in evidence. It was admitted that it was not acknowledged according to law, although it was duly recorded, but the defendant claims that the purchaser at the execution sale, and his grantees down to the plaintiff's ancestor, knew of its existence; and if this were so, it does not matter whether it was acknowledged at all.

Upon this question of notice the court, by several declarations of law, held: first, that the record of the deed under consideration was, previous to the act of 1847, no constructive notice to the purchaser upon execution, or those claiming under him; second, that a knowledge of the record was no notice of the contents of the deed; and, third, that public notoriety of the deed and the defendant's ownership was not to be received or considered as evidence in charging the plaintiff, or those under whom he claims, with the actual knowledge spoken of in the statute. Upon the first point the court was correct. The acknowledgment was taken before a justice of the peace of a county in which the lands do not lie, and was unauthorized by the statute. (Bishop v. Schneider, 46 Mo. 472.) Not being acknowledged, its record was outside the statute, and of itself imparted no notice except as provided by the act of 1847. (Stevens v. Hampton, 46 Mo. 404; Bishop v. Schneider, supra.) But the second proposition does not follow. The statute requires “actual notice,” and any evidence tending to prove such notice is competent, and should go to the jury. If the deed was actually put upon record, although not so acknowledged that its record would be constructive notice, and if the party saw that record, it would be very strong, if not conclusive, evidence of the actual notice required by statute. The object of the registry act is to protect innocent purchasers, and no subsequent purchaser can be innocent who knew of a previous conveyance, whether it be so acknowledged as to authorize its record or not. And it would be absurd to say that an exhibition to him of a copy of such conveyance, made under circumstances that would presume it to be a genuine copy, would be no evidence of such notice. It is not certain that the court intended to say precisely that, but its language will bear that construction; and it is otherwise apparent that more evidence of the actual notice required by the statute was demanded than has been held to be necessary. Notice is a question of fact, and anything tending to prove it is competent evidence (Maupin v. Emmons, 47 Mo. 306), and thus the third view of the court was also erroneous. If, in the neighborhood where the party to be charged with notice resides, the ownership of certain property is notorious, it is a fact to be considered as tending to show that he was advised of such ownership.

Upon due proof of the loss of the original deed from Herrick, a certified transcript of the record of the same was produced, and after several witnesses had testified that it was a correct copy, it was offered in evidence. It seems to have been at first received, but afterward the court declared that it was not properly in evidence. Previous to the act of 1847, the record of a deed imperfectly acknowledged did not operate as constructive notice. The provision of said act upon the subject is embodied in section 35 of the present statute, and by the next section (Wagn. Stat. 595, § 36) it is provided that certified or other copies of such record shall not be received in evidence without proof of the execution of the original. This provision seems to have been made to prevent misconstruction, for the proof of the loss of an instrument and the production of a copy cannot dispense with proof of its execution, in the same manner as though the original were produced (Jackson v. Frier, 16 Johns. 196; Kimball v. Morrill, 4 Me. 368), and it was doubtless feared that if such irregular registry should be made to operate as notice, it might be treated as a record proper, transcripts of which would be evidence without proof of execution. (Wagn. Stat. 278, § 30.) The reason for the distinction is obvious. In the one case the requirements of the registry act have not been complied with, and the entry upon the books is no record. In the other case the required formality of acknowledgment or of proof shows that the instrument has been executed; and, to perpetuate such evidence, a record of the whole is provided for, which, like other like records, is proved by production of the book, or by certified transcripts.

The effect, then, of producing in court the certified copy, is the same as the production of any other copy. The execution of the original and the truth of the copy must be satisfactorily established, and by the best evidence the nature of the case admits of. These are questions of fact, after the court, upon being satisfied of the loss of the original, has admitted secondary evidence; and such copy, when properly identified, is the most satisfactory evidence of the contents of the original. As this case was tried by the court sitting as a jury, it is difficult to understand whether the court intended to say, as a question of fact, that the execution of the original or the truth of the copy was not shown, or whether the copy was ruled out upon other grounds. There was evidence tending to prove both facts; its sufficiency was submitted to ...