Rupert v. Penner

• Decision Date: 02 November 1892
• Citation: 53 N.W. 598,35 Neb. 587
• Parties: RUPERT ET AL. v. PENNER ET AL.
• Court: Nebraska Supreme Court

35 Neb. 587

53 N.W. 598

RUPERT ET AL.

v.PENNER ET AL.

Supreme Court of Nebraska.

Nov. 2, 1892.

Syllabus by the Court.

1. Permitting the introduction in evidence of records of deeds duly recorded for the purpose of proving title to real estate in an action in ejectment, instead of requiring the production of the original deeds, rests largely in the discretion of the trial court, and its ruling thereon will be regarded as conclusive unless there has been an abuse of discretion.

2. The admission of a deed in evidence was objected to at the time by the adverse party as incompetent, immaterial, and irrelevant. Held, that the objection was not specific enough to reach defects in the execution of the instrument, as that it was not witnessed.

3. Ordinarily objections to the admission of testimony not made when offered are waived, and cannot be urged for the first time on appeal to this court.

4. Real estate is sufficiently described in a conveyance when the deed refers for identification to another deed specifically mentioned therein, which contains an accurate description of the property sold.

5. In the body of a deed and in the certificate of acknowledgment the grantor was correctly described as “Archibald T. Finn.” The deed was signed as “Arch. T. Finn.” The certificate of acknowledgment identified the party mentioned as grantor as known to the officer to be the person whose name is affixed to the instrument, and who executed the same. Held, that it sufficiently appeared that “Archibald T.” and “Arch. T.” were one and the same person.

6. Identity of the name of a grantor or grantee is prima facie evidence of identity of the person.

7. Under the provisions of section 53, c. 73, Comp. St., in construing an instrument conveying real estate, when, by a reasonable interpretation, the granting clause and the habendum can be reconciled, effect must be given both.

8. The premises of a deed were, “do hereby grant, sell, and convey unto J. P. C.” The habendum clause was, “to have and to hold said premises, with the appurtenances, unto the said J. P. C. for and during the term of his natural life, and at his decease the same shall descend in equal shares to his children,” naming them. Held, that the deed conveyed a life estate to J. P. C., with remainder to his children therein mentioned.

Error to district court, Douglas county; DOANE, Judge.

Ejectment by Mary H. Rupert and others against Peter Penner and others. Judgment for defendants. Plaintiffs bring error. Reversed.Savage, Morris & Davis, for plaintiffs in error.

Mahoney, Minahan & Smyth, for defendants in error.

NORVAL, J.

This is a suit in ejectment, brought in the court below by Mary H. Rupert, Sarah A. Burchmore, Thomas B. Cleveland, Sophia Cleveland, John B. Cleveland, Clara H. Cleveland, Grace M. Cleveland, and Grant W. Cleveland, the plaintiffs in error, to recover certain real estate situated in the city of Omaha. A jury was selected to try the cause, but, after the testimony was closed, by agreement of parties, the question of title was submitted to the court, who found for the defendants, and judgment was entered dismissing the action.

Plaintiffs claim title from the United States through numerous conveyances; the following being their chain of title to the premises: United States to Preston Reeves, patent, dated May 1, 1860, recorded January 5, 1861; Preston Reeves and wife to Jesse Lowe, mayor of the city of Omaha, warranty deed, dated October 31, 1857, recorded November 2, 1857; Jesse Lowe, mayor, etc., to Thomas B. Cuming, deed covering the undivided one half of the premises, dated October 31, 1857, recorded November 2, 1857; Charlotte Cuming, widow of Frank H. Cuming, deceased, May Cuming, Francis Cuming, Annie Cuming, Emily Cuming, and Caroline Large, sisters of said Thomas B. Cuming, to Margaretta C. Cuming, quitclaim deed, dated August 22, 1864, recorded December 2, 1864; Jesse Lowe, mayor, etc., to Archibald T. Finn and Charles Bridge, deed to undivided one half, dated October 31, 1857, recorded November 2, 1857; Charles Bridge to Archibald T. Finn, deed, dated April 29, 1861, recorded May 14, 1861; Margaretta C. Cuming to George Armstrong, deed, dated December 1, 1864, recorded December 2, 1864; Archibald T. Finn to George Armstrong, deed, dated September 27, 1862, recorded December 6, 1864; George Armstrong to Mason L. Derwin, deed, dated September 19, 1872, recorded same date; Mason L. Derwin to Moses Hotaling, warranty deed, dated December 14, 1867, recorded December 20, 1867; warranty deed from Moses Hotaling and Ellen M., his wife, to John P. Cleveland, for life, with remainder to his children, the plaintiffs herein, bearing date September 13, 1877, and filed for record the next day.

It appears from the evidence that said John P. Cleveland died in 1886, and that Mary H. Cleveland and Sarah A. Cleveland, mentioned in the deed last referred to, have since married; the former to Louis Rupert, and the latter to one Burchmore. The record shows that John P. Cleveland and wife mortgaged the premises sought to be recovered in this action on the 8th day of January, 1880, to Charles H. Housel, to secure the payment of $150; that subsequently said mortgage was foreclosed, the property sold under the decree to said Housel, and by directions of the court Wallace R. Bartlett, as special master commissioner, executed a deed to Housel covering said premises. On the 5th day of November, 1883, said Charles H. Housel, with his wife, Myra J., executed and delivered a warranty deed of the property to the defendant Peter Penner, which was duly placed upon record.

Numerous objections are urged by defendants to certain deeds in plaintiffs' chain of title, and defendants further insist that the deed of Moses Hotaling and wife conveyed the fee to John P. Cleveland, instead of a life estate to him, with remainder to plaintiffs. The plaintiffs, for the purpose of showing the devolution of title, introduced in evidence, over defendants' objections, record copies of the deeds, instead of the originals. Defendants contend with much earnestness that the proper foundation for the introduction of secondary evidence of the conveyances was not laid, and, although the records were admitted, the trial court ought to have excluded the same in reaching a conclusion, and therefore it will be presumed to have done so. Section 13 of chapter 73 of the Compiled Statutes of 1891, among other things, provides that “the record of a deed duly recorded, or a transcript thereof, duly certified, may also be read in evidence with the like force and effect as the original deed, whenever, by the parties' oath or otherwise, the original is known to be lost, or not belonging to the party wishing to use the same, nor within his control.” It appears from the testimony of Mrs. Cleveland that she was the wife of John P. Cleveland, and was residing with him at the time of his death; that he kept his papers in his desk at his home, where she made diligent search for the deeds, but was unable to find either of them, and that none of the original deeds constituting plaintiffs' chain of title were in her possession or under her control. True, Mrs. Cleveland is not a party plaintiff in her own right, yet she is the natural guardian of, and appears and prosecutes the suit as the next friend for, the minor plaintiffs. In view of the statutory provisions and the construction placed thereon by this court, we are of the opinion that sufficient foundation was laid for the introduction of the record of conveyances. The question of admitting in evidence records of deeds and other instruments duly recorded, instead of requiring the production of originals, rests largely in the discretion of the trial court. There was no abuse of discretion in this case in admitting secondary evidence. The deed to John P. Cleveland and the plaintiffs embraces only a portion of the lands described in the deeds to which objections are made; therefore the record of such deeds was admissible in evidence, without laying any foundation therefor, as there is no presumption that the originals were ever in plaintiffs' possession. Delaney v. Errickson, 10 Neb. 492, 6 N. W. Rep. 600;Plow Co. v. Martin, 16 Neb. 27, 19 N. W. Rep. 512; Railroad Co. v. Marley, 25 Neb. 138, 40 N. W. Rep. 948;Buck v. Gage, 27 Neb. 306, 43 N. W. Rep. 110.

The point is made that the deed from Jesse Lowe, mayor, to Finn and Bridge, was incompetent to show a transfer of title from the grantor to the grantees therein named, because the same is not witnessed; therefore it should not have been admitted by the trial court, and hence must now be disregarded. A sufficient answer to this contention is that no such objection was urged in the court below. The record shows that when the deed, or rather the record thereof, was offered in evidence, the defendants objected to its introduction as being incompetent, immaterial, and irrelevant. This objection is too general to reach the defect now insisted upon. Gregory v. Langdon, 11 Neb. 166, 7 N. W. Rep. 871. Had the ground of the defendants' objection to the deed been that it was not witnessed, its admission in evidence would have been improper. While this is true, it by no means follows that, since the deed was admitted without such objection being made, the court would be justified in rejecting the same when it comes to weigh the testimony. The cases of Enyeart v. Davis, 17 Neb. 228, 22 N. W. Rep. 449, and Willard v. Foster, 24 Neb. 213, 38 N. W. Rep. 786, cited in brief of defendants, are inapplicable. No such question as we are now considering was therein decided. These decisions affirm the doctrine, which has been repeatedly recognized and applied by this court, that error will not lie for the admission of irrelevant testimony in a cause tried to a court without a jury. The reason for the rule is well stated in Willard v. Foster thus: “The court must necessarily have an opportunity to examine each article of...