Shotwell v. Harrison

• Decision Date: 18 April 1871
• Citation: 22 Mich. 410
• Court: Michigan Supreme Court
• Parties: Daniel Shotwell v. Charles A. Harrison

22 Mich. 410

Daniel Shotwell v. Charles A. Harrison

Supreme Court of Michigan

April 18, 1871

Heard January 10, 1871

Error to Van Buren circuit.

For statement of case see the opinion.

Judgment reversed, with costs, and a new trial awarded.

E Bacon, for plaintiff in error, as to burden of proof of payment of a valuable consideration, cited: Godfroy v Disbrow, Walk. Ch., 265; Wood v. Chapin, 13 N. Y., 509; Jackson v. McChesney, 7 Cow. 360; Jackson v. Elston, 12 Johns. 453; Amsden v. Manchester, 40 Barb. 159; Pomeroy v. Stevens, 11 Metc. 246; Bush v. Golden, 17 Conn. 594; Sumner v. Rhodes, 14 Conn. 135; Fort v. Burch, 6 Barb. 78; Hubbard v. Smith, 2 Gibbs 207; Butler v. Stevens, 26 Me. 484; Thallhimer v. Brinkerhoff, 6 Cow. 102; Center v. Bank, 22 Ala. 743; Hine v. Dodd, 2 Atkyns 275; Lawrence v. Stratton, 6 Cush. 163; Knott v. Garger, 4 Rich. 32; Sulboon v. Bates, 1 Lyttel 42; Roberts v. Salisbury, 3 Gill. and Johns., 425.

George W. Lawton and H. F. Severens, for defendant in error, as to proof of legitimacy, cited: Wilkinson v. Adams, 1 Ves. and Beames, 422. That the court properly took judicial notice that the Supreme Judicial Court of Massachusetts was a court of record: Jarvis v. Robinson, 21 Wis. 523; Butcher v. Brownsville, 2 Kan. 70. As to the construction of the clerk's certificate: Harrington v. Fish, 10 Mich. 415. That burden of proof of the payment of valuable consideration is on the purchaser and those claiming under him: Mowrey v. Vandling, 9 Mich. 41; Nolen v. Gwynn, 16 Ala. 725; Lloyd v. Lynch, 28 Penn. St., 419; Dixon v. Hill, 5 Mich. 409; Dean v. Connelly, 6 Barr 239; Carver v. Jackson, 4 Pet. 1; Jewett v. Palmer, 7 Johns. Ch., 65.

Christiancy, J. Graves and Cooley, JJ., concurred. Campbell, Ch. J. concurring in part and dissenting in part.

OPINION

Christiancy J.:

This was an action of ejectment brought by Harrison against Shotwell, in the circuit court for the county of Van Buren. The verdict and judgment were for the plaintiff below (defendant in error), and the case comes here by writ of error and bill of exceptions.

The land in question was patented by the United States to Thomas B. Millard, May 1st, 1839, and both parties claim title through the patentee. The plaintiff claimed through the following deeds: 1st, a warranty deed from Millard, the patentee, to Horatio N. Monroe, dated August 1st, 1837 (before the issuing of the patent); 2d, a warranty deed from Monroe to David Crittenden, of Conway, Massachusetts, dated March 19, 1838, and recorded in the registry of deeds for Van Buren county, April 25th, 1838; and, 3d, a deed executed to the plaintiff by Harriet A. Crittenden as the widow, and George F. Crittenden as the sole heir of David Crittenden. The above deed from Millard, the patentee, to Monroe, conveyed also other lands situate in Barry county, and was duly recorded in the latter county in the year 1839, but was not recorded in Van Buren county until the 25th of February, 1868, after the institution of the suit; though a copy from the Barry county record, certified by the register of deeds of that county, was entered upon the records in Van Buren county on the 11th day of January, 1868.

In the mean time, before the recording of Millard's deed to Monroe (or even the copy of it) in Van Buren county, Millard, the patentee, had been induced to execute another deed--a quit-claim--of the lands in question, to one Thomas Silliman, dated the 4th day of January, 1865, which was recorded in Van Buren county on the 5th of January, 1865. It was through this deed and several mesne conveyances that the defendant Shotwell claimed title, as will be more particularly noticed when we come to consider that part of the case.

We shall first consider the questions raised in reference to the plaintiff's deduction of title, omitting, however, such of the exceptions as were not relied upon on the argument.

1st. (Taking the objections in their logical order), it was objected that the deed from Millard to Monroe was not admissible, because purporting to be executed long before the issuing of the patent to Millard, and it is urged that the court erred in charging the jury, that "the fact that Millard deeded to the plaintiff's grantor before he received a patent, makes no difference in the case." It is insisted that, as there was no evidence tending to show that Millard had previously entered the land, the deed could not operate as the conveyance of a title.

We see no force in this objection. The deed contained a covenant of warranty, and certainly operated by way of estoppel, as against Millard and all who might afterwards claim title through him; whether it operated strictly as a direct conveyance or transmission of title or not is quite immaterial, as the defendant claimed under a subsequent conveyance from Millard. This point is entirely distinct from that of the priority of record, which would have been just the same if this deed had been executed after the issuing of the patent. This operation of a covenant of warranty is too well settled in this country to require a citation of authorities; but see the late case of Irvine v. Irvine, 9 Wallace U.S. R., 617.

2d. It is objected that the deed purporting to be executed by the widow and heir of David Crittenden, was improperly admitted in evidence because it was executed and acknowledged in the state of Massachusetts, and the clerk's certificate to the official capacity of the justice who took the acknowledgment to its genuineness and its execution according to the laws of that state, does not show that the clerk so certifying was the clerk of a court of record, as required by the statute: Comp. L., Sec. 2729, Laws of 1861, p. 17, sec. 3.

"Commonwealth of Massachusetts, "Franklin county, ss.

"I, Edward E. Lyman, clerk of the judicial courts of the commonwealth of Massachusetts, for the county of Franklin, do certify," etc., and it concludes thus: "In testimony whereof, I have hereunto set my hand and affixed the seal of the Supreme Judicial Court of the said commonwealth, this twelfth day of July, in the year of our Lord 1867." It is signed by the clerk and sealed with the seal of the Supreme Court.

We think this is a full compliance with the statute. It sufficiently appears that the clerk was the clerk of the Supreme Judicial Court, as well as of other judicial courts of that state for the county of Franklin; and we will take judicial notice that the Supreme Court of that state is a court of record. See Jarvis v. Robinson, 21 Wis. 523; Butcher v. Bank of Brownsville, 2 Kan. 70.

3d. It is objected that there was no proof that George F. Crittenden was the heir of David Crittenden, there being, as it is urged, no legal evidence of the marriage of his father and mother.

The depositions taken by stipulation are a full answer to this objection, not alone on the ground suggested by the court, that they were taken by stipulation, but their admissibility and effect as original evidence would have been the same if taken by commission and without any assent of the defendant.

The deposition of Harriet A. Crittenden states that she knew David Crittenden in his life time; that he died October 15, 1866; that he left a widow and one child; that she is his widow, and the said George F. is the son of said deceased. She also says, "I know that my late husband, said David Crittenden, frequently, in his life time, sent money to pay taxes on land in Van Buren county," etc. Her testimony also shows that said George F. was the only child of said David Crittenden. The depositions of E. D. Hamilton, W. C. Campbell (both of whom seem to have been neighbors, and to have known the family well), and of the said George F. and his wife, are all to the same effect--all speak of said Harriet A. as the widow, and of the said George F. as the son; all speak of the said George F. as the only child of the deceased, and some of them say expressly, and the others by the strongest implication, that they think deceased never had any other child. The question of identity is not raised, and the death of the ancestor is clearly shown.

Now, in the absence of all opposing testimony (of which there was none), we think this is not only sufficient but ample, original and sufficiently direct evidence of the marriage of the father and mother of said George F., of his legitimacy and sole heirship; and if the jury had found otherwise, it would have been the duty of the court at once to have set aside the verdict. The law is very liberal in the admission of evidence in proof of marriage and pedigree, and if all the depositions cannot be considered as original, primary and direct evidence (see 1 Greenlf. Ev., secs. 100 to 107, incl.; 2 Greenlf. Ev., secs. 461, 462), that of the widow certainly is so. In the absence of any circumstance to excite suspicion of concealment or mental reservation, when a woman swears that she is the widow of a man who is deceased, and says he was her husband, it would be doing violence to common sense to say that she does not testify that they were married.

The rule which requires the best evidence was fully complied with. See Starkie's Ev. by Sharswood, 642, 644. This rule does not operate to exclude evidence which is of the same grade or quality, merely because it is not all nor the most satisfactory which might be adduced, when the evidence offered and that which is withheld is of the same general quality and grade. See Stark. Ev., ubi sup., and Cowan & Hill's Notes to Phil. Ev., 1st ed., note 414, and authorities cited.

We see no error in any of the rulings of the court in reference to the admission or rejection of evidence of the plaintiff's title given upon the opening; and the plaintiff had made a clear prima facie title from the patentee.

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