Appeal
from Common Pleas Circuit Court of Lexington County; F. B
Gary, Special Judge.
POPE
C.J.
On the
15th day of May, 1901, this action was commenced. Its object
was to recover from the defendants a tract of land containing
100 acres, situate in
Lexington county, in the state aforesaid, which tract of land
is more fully described in a plat made thereof
by W. E. Sawyer, deputy surveyor, known as "Tract No.
5" of the land belonging to the estate of Andrew Shealy,
deceased, laid out January 26, 1877. Plaintiffs claim this
land as arising from a partition of the lands of which Andrew
Shealy died seised in 1873, and which said lands were
partitioned amongst his seven children by three commissioners
appointed by them. All parties being sui juris, deeds were
signed to the tract so partitioned so that each one of the
seven children received lands in kind, but a life estate in
each tract was in said deeds reserved to Sarah Shealy, the
widow of the said Andrew Shealy, deceased. The plaintiffs
claim the tract so assigned in said partition to one Henry
Shealy, who died in 1888, survived by his widow and one
child. The child, an infant, died prior to the mother. The
mother died being possessed of all the estate of her said
husband, Henry Shealy, and his infant child. After her death
a partition of said tract of land, containing 100 acres, was
made under the decree of the court of common pleas for
Lexington county, and at the sale ordered by said court the
plaintiffs became the purchasers thereof. After the death of
the life tenant, Sarah Shealy, in 1900, they demanded
possession of said 100 acres, which was not only refused, but
they were ordered not to come upon said lands. Thereafter
they brought their action as aforesaid against the three
defendants, who have retained possession thereof since the
death of their mother, Sarah Shealy, deceased, widow of
Andrew Shealy, deceased.
The
defendants set up three defenses. The first was a general
denial of all the allegations of the plaintiffs'
complaint. The second was that neither the plaintiffs, their
ancestors nor predecessors, were seised or possessed of the
premises described in the complaint within 10 years before
the commencement of this action, and that the defendants are
the owners in fee of the said premises, and that they have
held and possessed the said premises adversely to the
pretended title of the plaintiffs for more than 10 years,
under a claim of title in fee, exclusive of any other right.
And for a third defense that prior to this
action the defendants had been in the adverse, uninterrupted,
peaceable possession of said premises for a period of 10
years, claiming the same as their own, and these defendants
plead such possession as a bar to this action under the
statute. The action came on for trial before the special
judge Hon. Frank B. Gary and a jury. Full testimony was
taken, and a full and comprehensive charge to the jury from
the said special judge. The jury thereupon found for the
plaintiffs the land in dispute. A motion was made for a new
trial on the minutes of the court, which was refused.
Thereafter, on judgment being entered up for the plaintiffs,
the defendants appealed to this court. We will now undertake
to pass upon these exceptions in their order.
"(1) Because his honor erred in allowing counsel for
plaintiffs to read to the witness Mabus a description of the
land in controversy from a deed which counsel held in his
hand, and to ask said witness whether he knew the land
described in the said deed, and what it was known as; the
error being in counsel's telling the witness where the
land was; instead of the witness telling the court and jury
where the land was, and what he knew about it." Before
the question objected to was asked, the witness had testified
that he was 65 years old, that he knew Andrew Shealy and his
children, and he lived not over two miles from him, and that
he knew the Shealy lands tolerably well. We do not see that
there was any serious objection to the mode adopted in
obtaining the testimony of this witness touching the identity
of the particular tract here sought for. Of course, this
identification had to be made before the court and jury, and
his honor, in permitting the question, stated that he knew no
better way for the witness to indicate what the tract of land
was, how located, etc., unless by pursuing the plan adopted;
nor do we see that there was any ground in this matter to
reverse the judgment. There was other and full testimony in
regard to this tract of land. It happened to be the home
tract of Andrew Shealy, deceased, where the
children were brought up, some of whom have never left the
place since their birth. Therefore we overrule this
exception.
"(2) Because his honor erred in allowing counsel for
plaintiff to propound to the witness Mabus the following
question and allowing said witness to answer same: 'Q.
Now, Mr. Mabus, I will read you the description of another
piece of land, and ask you if you know that. (Description
read to witness.) A. No, sir. Q. This is the same description
I read to you; covers the same land? A. Yes, sir."
D' The appellants fail to indicate to this court what
their ground of objection to this question really is, and we
will ask to be excused from involving ourselves in the
difficulty of ascertaining exactly what the exception to the
testimony is, and for the present we will overrule the
exception because it is too general.
"(3) Because his honor erred in allowing the witness
Reynolds to testify that the land of Andrew Shealy, deceased,
had been divided, and that he and two others were the
commissioners who had divided said land among the children of
said Andrew Shealy, when it is respectfully submitted that
the division of Andrew Shealy's lands was irrelevant to
the matter in issue in this case." We cannot take this
view of the matter. If anything, we think the presiding
judge held the plaintiffs to too narrow a compass. Not only
did this witness testify to the division, but two of the
defendants did likewise. Truth is the great aim of
investigation in courts.
The best manner that can be adopted to elicit the truth is
always to be aimed at. The deed and the plat show that this
tract of 100 acres now sued for was tract No. 5 in the
partition of Andrew Shealy's, deceased, lands. As before
remarked the partition was not made under proceedings from a
court or in a court, but, all parties being of full age,
consented to these three neighbors, as commissioners, making
the partition. We cannot see that any mistake was made by the
presiding judge in this particular, especially in view of the
quantity of testimony given by other witnesses,
and some of them parties to the cause. This exception is
overruled.
"(4) For that his honor erred in admitting in evidence
the record book of the clerk's office, which contained a
record purporting to be a deed from Sarah Shealy and others
to Henry Shealy, when the original deed was delivered to
plaintiffs' counsel in open court, pursuant to notice,
and there was no competent proof that said deed was
mutilated, or that any part of it was lost." Certain it
is that the plat to which direct reference is made in the
deed itself as being a part of said deed of conveyance to
Henry Shealy was not attached to said original deed when it
was brought into court under notice. However, such plat was
recorded with the deed in the clerk's office amongst the
records of 1877, the year in which it was executed. Carrying
out the view suggested by the appellant, it would seem that
the jury would have been denied the pleasure and profit of
the inspection of this plat if their views had prevailed.
There were palpable evidences of a mutilation of the original
deed when produced in court. How else could the changes that
had been wrought in the body of the deed itself been brought
to light than by a comparison of said original deed with the
record from the office of the register of mesne conveyance,
which purported to be a copy of the said deed, made in the
very year of its execution? We must overrule this exception.
"(5) Because his honor erred in admitting in evidence
the record of the clerk's office, which contained the
record of a paper purporting to be a deed from Sarah Shealy
and others to Henry Shealy, when the original deed had been
produced, and in holding that the notice which was served on
defendants had nothing to do with the copy to be introduced,
and that plaintiff could put up the next best evidence, when
it is respectfully submitted that, if the original had not
been produced, or, if it had been produced, there had been no
proof to show it had been mutilated, then a certified copy
alone could have been admitted in evidence, and not the
record book from the clerk's office; and
his honor erred in matter of law in not so holding.
(6) Because his honor erred in holding: 'Gentlemen, I
hold he has the right to introduce this record for the
purpose of proving that portion of the record which does not
appear in the deed. I think the fact it is on record is
certainly some evidence it was at one time in existence. Of
course, the original is the highest evidence, and as far as
it goes it ought to be used rather than the record.' The
error being in his honor holding that the fact that this deed
had been placed on record was sufficient to show that the
deed had been mutilated."
The
fact of the mutilation of the deed was a matter of...
