Russell v. Glasser

• Decision Date: 19 December 1887
• Citation: 6 S.W. 362,93 Mo. 353
• Parties: RUSSELL et al. v. GLASSER et al.
• Court: Missouri Supreme Court

6 S.W. 362

93 Mo. 353

RUSSELL et al. v. GLASSER et al.

Supreme Court of Missouri.

December 19, 1887.

1. EJECTMENT — EVIDENCE — DEEDS — RECORDS — SECONDARY EVIDENCE.

In an action of ejectment the plaintiff offered in evidence records of various deeds, without accounting for the absence of the originals. Held, that the records were not admissible.¹

2. SAME — DEEDS ADMITTED BY THE PLEADINGS.

In an action of ejectment, the defendant's answer admitted deeds constituting a chain in plaintiffs' title. Held, that it was not obligatory on the plaintiffs to offer such deeds in evidence at the trial.

3. APPEAL — REVIEW — OBJECTIONS TO EVIDENCE — OBJECTION NOT RAISED BELOW.

On the trial of an action of ejectment, the defendants objected to the admission in evidence of a certified copy of a will, on the ground that there was no evidence to show that the testatrix ever had any title to the land, and the objection was sustained. On error being brought, the record described the instrument objected to as a "certified copy of the will," and the defendants then justified the ruling of the court below, on the ground that a "certified copy of a will" is not in terms made evidence by Rev. St. Mo. §§ 3989, 3990; which provide that a "will, * * * recorded and certified to by the clerk of the court, and attested by his seal," may be read in evidence. Held, that the defendants should be limited to the objection taken at the trial.

Error to circuit court, Morgan county; E. L. EDWARDS, Judge.

This was an ejectment brought by John G. Russell and others against Martin Glasser and Jacob Sherer. In the court below, a nonsuit was entered. The plaintiffs brought writ of error.

A. W. Anthony, for plaintiffs in error. B. R. Richardson, for defendant in error, Glasser. James E. Hazell, N. K. Chapman, and Cosgrove & Johnston, for defendant in error Sherer.

RAY, J.

This is an action of ejectment by plaintiffs to recover from defendants the possession of the land described in the amended petition, which is in the ordinary and usual form. The separate answer of defendant Sherer, who was made a party defendant upon his own motion, denies each and every allegation of the amended petition not thereinafter expressly admitted, and denies specifically that plaintiffs were entitled to the possession of the described premises at the date named, or at any date, and that defendants afterwards entered into such possession, and unlawfully withheld the possession from plaintiffs. Further answering the amended petition, defendant Sherer says "that on the fourth day of October, 1856, one James H. Chapman owned and possessed said above-described real estate, and that on the date last aforesaid the said James H. Chapman and his wife pretended to convey the same to his brother William Chapman, Jr., who attempted on the seventeenth day of May, 1860, to sell the same to one C. H. Tyler, who afterwards, to-wit, on the twenty-ninth day of August, 1862, attempted to convey to one Lucy B. Russell; that the said James H. Chapman, at the time he made said pretended conveyance to his brother William, as aforesaid, was a minor under the age of twenty-one years, and that, after making said pretended conveyance he remained in possession of said land, and continued to occupy and exercise acts of ownership over the same until the fifteenth day of February, 1868, thereby disaffirming his said deed made during his minority; that when he sold the same to one C. H. O'Neil, said C. H. O'Neil owned and occupied said land until the twenty-eighth day of May, 1869, when he sold and conveyed the same to the defendant Jacob Sherer, who owned and occupied the same until the fifth day of June, 1873, when he sold and conveyed the same to the defendant Martin Glasser, who has ever since owned and occupied said land, and who now has possession and exercises acts of ownership over the same." The answer also sets up the statute of limitations, which it is not necessary in this case to further notice. Defendant Glasser, in his separate and amended answer to the amended petition, denies each and every material allegation therein contained, except as thereinafter expressly admitted. Further answering, he admits that he purchased the land in controversy from Jacob Sherer in June, 1873, and that he has remained in possession ever since, and was in possession at the commencement of the action, and that he has no other title to the premises than as grantee of his co-defendant, Sherer. The reply to the separate answer of defendant Sherer admits that James H. Chapman on the fourth day of October, 1856, owned the real estate described in the petition, and that he and his wife conveyed the same to his brother, William Chapman, and that William Chapman and wife, on the seventeenth day of May, 1860, conveyed the same to C. H. Tyler, and that Tyler and wife, in 1862, conveyed to Lucy B. Russell; but denied each and every other allegation contained in said answer. The reply also states that these several conveyances were all duly executed, acknowledged, and recorded; the deed from James H. Chapman to William Chapman being recorded October 5, 1856, and the deed from William Chapman to Tyler, June 21, 1860, and said deed from Tyler to Lucy B. Russell, (the plaintiffs being her legal heirs,) September 22, 1862. The reply to the separate answer of defendant Glasser was the general denial, except as to the allegations and admissions therein that Glasser was in possession when the suit was brought.

The cause coming on for trial before the court and jury, plaintiff offered to read in evidence the records of said various deeds from James H. Chapman and wife to William Chapman, and from William Chapman and wife to said Tyler, and from said Tyler and wife to Lucy B. Russell; which were all objected to, upon the grounds that the record was not the best evidence, — that the originals should be produced, or their absence accounted for; which said objections were sustained, and all of the said records excluded. "A certified copy of the last will and testament of said Lucy B. Russell, devising the real estate in suit to the plaintiffs," offered in evidence by plaintiffs, was objected to by defendants, "for the reasons that the evidence did not show she ever had any title to the land, and no evidence was offered to establish the identity of plaintiffs as the parties named in the will; which said first objection was by the court sust...