Plaster v. Rigney

• Decision Date: 25 September 1899
• Docket Number: 1,159.
• Citation: 97 F. 12
• Parties: PLASTER v. RIGNEY.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 12

PLASTER v. RIGNEY.

No. 1,159.

United States Court of Appeals, Eighth Circuit.

September 25, 1899

John B Hale and L. H. Waters, for plaintiff in error.

George H. English, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This was a suit in ejectment by which Alice H. Rigney, by her curator, Charles Lyon, the plaintiff below and the defendant in error here, recovered from Elisha Plaster, the plaintiff in error and the defendant below, the possession of certain lands in Carroll county, Mo., which are described as a part of the N.W. 1/4 of section 19, township 55, range 23 W. The ouster complained of was laid as having occurred on or about the last day of February, 1877, and the suit was instituted on January 9, 1896. The land in controversy was originally military bounty land, and a patent therefor was issued to Henry Richmond on April 20, 1819. The plaintiff below deraigned her title thereto under a deed from said Richmond to one John Thompson, dated August 21, 1819, and acknowledged the same day before Robert Wharton, mayor of the city of Philadelphia, Pa. This deed was filed for record in Carroll county, Mo., on May 5, 1866. The plaintiff showed an unbroken chain of title under the aforesaid deed in James Rigney, her deceased husband, who died in March, 1871, and a deed from the administrator of her husband, of date October 16, 1872 duly acknowledged and recorded, which vested in her all the title of her said husband. Oral evidence was adduced by the plaintiff which tended to show that there were no improvements on the land in controversy as late as the year 1871; that in the year 1870 and in the year 1871, until his death, her husband was in possession of the land; that in said years he did some plowing on said land, cut some timber thereon, and procured some lumber, with a view of building a house and establishing a home upon the property; and that he also employed a person to look after the possession and prevent trespasses. The plaintiff also produced evidence which tended to show that she was insane at the time her husband died and for some time previous thereto, and was incapable of attending to her business, and remained in that condition until 1895, when she was adjudged insane. The defense which the defendant below interposes was possession under color of title, to wit, a tax deed, for a period which was sufficient, as he claimed, to bar the plaintiff's right of recovery under the statute of limitations. He also sought to avail himself of an alleged outstanding valid title in a stranger.

It is assigned for error, in the first instance, that the trial court erred in admitting in evidence a certified copy of the deed above mentioned from Richmond to Thompson, of date August 21 1819, under which the plaintiff below claimed, without requiring proof of the identity of the grantor, or, what is the same thing, without requiring proof of the execution of the original deed, which, at the date of the trial, was nearly 80 years old. It is asserted in behalf of the defendant below that there was no law in force in the state of Missouri warranting the admission of the certified copy of said deed without said proof. We are constrained to overrule this contention. Two sections of chapter 62 of the Revised Statutes of Missouri of 1889, concerning evidence, are as follows:

'Sec. 4864. * * * All records made by the recorder of the proper county one year before this law takes effect by copying from any deed of conveyance, deed of trust, mortgage, will or copy of a will, or other instrument of writing, whereby any real estate may be affected in law or in equity, that has neither been proved nor acknowledged or which has been proved or acknowledged, but not according to the law in force at the time of the same was recorded, shall hereafter impart notice to all persons of the contents of such instruments; and hereafter when any such instrument shall have been so recorded for the period of one year, the same shall thereafter impart notice to all persons of the contents of such instruments, and all subsequent purchasers and mortgagees shall be deemed to purchase with notice thereof.

'Sec. 4865. * * * Certified copies of such records as are contemplated in the next preceding section shall not be received in evidence until the execution of the original instrument or instruments from which such records were made shall have been duly proved according to law, except where such records shall have been made thirty years or more prior to the time of offering the same in evidence.'

The copy of the deed in question fell within the language of this statute. The statute in its present form took effect in 1887 (Sess. Laws Mo. 1887, p. 183), more than one year after the original deed was recorded, and the original deed was not acknowledged according to the law in force when the same was recorded, because it was acknowledged before the mayor of a city, who had no power to take the acknowledgment, on May 5 1866, when the deed was recorded (Gen. St. Mo. 1865, c. 109, Sec. 9), although he had such power, and the acknowledgment was in all respects regular when it was taken. So that, within a technical view of the statute, the copy of the deed was admissible under section 4865, supra, without proof of the execution of the original deed, it having been recorded more than 30 years before it was offered in evidence. But upon a broader view of the question, the copy of the deed was admissible. The statute above quoted is remedial and entitled to a liberal construction. It recognizes the difficulty of proving the execution of many instruments affecting the title to real property which have been of record in the proper office for upwards of 30 years, and it was intended to dispense with such...