Totten v. James

• Decision Date: 28 February 1874
• Parties: SARAH G. TOTTEN, Respondent, v. SAMUEL JAMES, Appellant.
• Court: Missouri Supreme Court

55 Mo. 494

SARAH G. TOTTEN, Respondent,

v.SAMUEL JAMES, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Carroll Circuit Court.

Ray & Ray, for Appellant.

I. The certified copy of the record of the deed from Whitehead to Snell was not admissible in evidence, because the original of said deed did not appear to have been properly acknowledged under our laws or the laws of Kentucky, when made, nor was any proof of its execution offered, nor was any proof offered to show what were the laws of Kentucky at that time in reference to the acknowledgment of deeds. (Crispen vs. Hannavan, 50 Mo., 415; 1 Greenl. Ev., 183, § 142, 6 Ed.) Such certified copy was not admissible under Wagn Stat., 594, 595; the law applicable to military bounty lands is different (Wagn. Stat., 278, 279).

II. Any alteration of that law (Sess. Acts 1873, p. 44) since the date of the trial of this case below cannot have anything to do with the decision of this case. It has often been decided, that a rule of evidence frequently becomes a rule of property, and, when that is the case, no subsequent change of the law of evidence can or will be permitted to work a divestment of title, or be allowed to confer title where it did not exist before.

III. The deed from Snell to Gibson, by the certificate duly indorsed thereon, appeared to have been duly proven by an attesting witness thereto before a competent officer, and it further appeared by the oath of the defendant, that said original of said deed was not within the power of said defendant, nor ever had been, and that he knew nothing about it. The record of said deed was therefore admissible. (Wagn. Stat., 274-276, §§ 9, 15, 16, 17, 18; Id. 277, 278.)

A party offering the copy of a deed pertaining to military bounty land is not bound to prove its loss or destruction, unless the deed so offered is claimed to be admissible by reason of its having been acknowledged or proved out of this State and in conformity to the laws of the State where the acknowledgment or proof purports to be taken. (Wagn Stat., 278, 279, §§ 35-38.)

This deed was proved up in this State before a competent officer. In such case and under such certificate of proof, the party offering is only bound to make oath, that the original is not within his power.

IV. As to outstanding title see Gurno vs. Janis, 6 Mo., 330; McDonald vs. Schneider, 27 Mo., 405; Meyer vs. Campbell, 12 Mo., 603; Schulz vs. Lindell, 30 Mo., 310; Callaway vs. Fash, 50 Mo., 420; Boyd vs. Jones, 49 Mo., 202.

L. H. Waters, for Respondent.

I. The certified copy of the record of the deed from Whitehead to Snell is admissible in evidence under Wagn. Stat., 595, § 33, as amended March 22d, 1873 (Laws 1873, p. 44). As the law stood when this cause was tried in the court below, the record offered, being of a deed for military bounty land, was not admissible. (Ryder vs. Fash, 50 Mo., 476; Crispen vs. Hannavan, Id., 415.) Though error may have been committed by the court below on the then state of statutory law, yet if by subsequent legislation such change has been made in the then existing law, so that, if the judgment was reversed, the court below by virtue of the new statute would have to give the same judgment, this court will affirm. (Pugh vs. McCormick, 14 Wall., 361.)

II. The record of the deed from Snell to Gibson was properly excluded. The land in controversy was military bounty land, and the record was of a deed which purported to have been executed out of this State, and within the United States, and the loss or destruction of the original should have been proved. (Wagn. Stat., 270, § 38.) This deed was executed when it was “signed, sealed, and delivered.” (Christy vs. Cavanagh, 45 Mo., 375; Barton vs. Murrain, 27 Mo., 240.) Deeds to military bounty lands, executed out of the State, are withdrawn from the statutory rules of evidence relating to conveyances in general. (Crispen vs. Hannavan, 50 Mo., 415.)

III. The outstanding title relied on by appellant was barred by the statute of limitation.

NAPTON, Judge, delivered the opinion of the court.

This was an ejectment by plaintiff to recover a tract of land in the Military Bounty...