Waldo v. Russell

• Decision Date: 31 May 1838
• Citation: 5 Mo. 387
• Parties: LAWRENCE L. WALDO v. ADAM RUSSELL.
• Court: Missouri Supreme Court

5 Mo. 387

LAWRENCE L. WALDO

v.ADAM RUSSELL.

Supreme Court of Missouri.

May Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY.

COLE, for Appellant. The first error assigned presents the question, whether the evidence of Waldo, that went to the jury, was legal or not? The first evidence offered by him on the trial, as the record shows, was a paper purporting to be a transcript of a judgment of a justice of the peace of Franklin county, in behalf of J. & L. L. Waldo, against John A. Veitch, for $38.63 debt, and also costs. This paper bore date 16th August, 1834. There are two objections to this judgment being evidence: 1. It was not proved that this judgment had, at any time, been filed in the office of the clerk of the Circuit Court of Franklin county, nor was it shown that it was a copy of an original on file. 2. That the execution issued by the clerk cannot prove this fact, and dispenses with the production of the judgment itself. W. Morrison v. F. Dent, 1 Mo. R. 246; 1 Stark. Ev. 283. 3. The execution of the clerk recites the style of the judgment of the justice filed in his office, to be Joseph & Lawrence L. Waldo, against John A. Veitch. This is showing conclusively, that at the time the execution from the clerk's office was issued, there was no transcript filed, or the record of the justice had been interpolated. This transcript was, therefore illegal evidence. Coonce v. Munday, 3 Mo. R. 373.

The plaintiff below then offered in evidence a certificate of the justice of the peace, who had rendered judgment in the case of J. & L. L. Waldo against John A. Veitch, to prove that execution had issued upon the judgment, and to prove the constable's return upon this execution. The date of this certificate is 3rd November, 1834. This evidence was inadmissible: 1. Because the justice does not certify that it was a copy of proceedings had before him as justice in the case. Without this, it should not have gone to the jury. Digest of 1825, 362, § 3; Passon v. Brown, 11 Johns. R. 166. 2. This certificate contains a mere statement of facts in reference to the case, from the recollection of the justice, and which facts must have been of record in his office. His statement, therefore was illegal evidence, unless, indeed, the record evidence could not have been obtained, and its absence had been accounted for; and even in such a case, the justice must have given evidence in person and not by certificate. 3. Waldo gave in evidence a paper purporting to be an execution issued upon the judgment of the justice aforesaid. It appears to have been issued on the 16th August, 1834. The return of the constable thereon was also given in evidence. This paper was not admissible, because it was not proved to be an original execution, nor a copy of an original execution, and the same may be said of the constable's return; it was not proved--Coonce v. Munday, 3 Mo. R. 373; Burke et al. v. Flournoy et al. 4 Mo. R. 116. 4. The plaintiff below gave in evidence a paper purporting to be an execution from a justice of the peace upon the judgment aforesaid, dated 15th September, 1834. The return of the constable thereon was not in evidence. This was both illegal and without testimony, for the reasons aforesaid. 5. The plaintiff gave in evidence an execution issued from the clerk of the Circuit Court of Franklin county, on the 4th November, 1834, in favor of Joseph & Lawrence L. Waldo against John A. Veitch, which recites the judgment of the justice of the peace rendered on 16th August, 1834, and that an execution had been issued thereon, and had been returned, no “goods and chattels of the said John A. Veitch to be found,” and that a transcript of said judgment had been filed in the clerk's office on 16th August, 1834. The execution then continues and concludes in the usual form. The objections to the admissibility of this evidence are, first, there was no judgment or execution in proof that agreed with its recitals; and in the second place, the facts were not shown, if they ever existed, to warrant the clerk of the Circuit Court to issue this execution. 6. The plaintiff gave in evidence a paper purporting to be a copy of letters patent to John A. Veitch for the land in the plaintiff's declaration mentioned, bearing date 1st October, 1835, and the certificate of the register at St. Louis, that it was a copy; a witness also proved that it was a copy of the original, and that the original had been demanded, in behalf of the plaintiff, of the register, who refused to deliver it, unless the certificate of the receiver was produced. The plaintiff also proved a notice on defendant to produce the patent aforesaid on the trial. This was illegal evidence: 1. Because the register of a land office, for the sale of the public land, has no power by law to authenticate copies of patents deposited with him for delivery to the owner, so as to make such copies evidence in a court of justice. 2. This was secondary evidence. A subpœna duces tecum would have produced the original patent at the trial. Peak's Ev. 96-7; 1 Stark. Ev. 358-9. 3. The notice given was a nullity from the plaintiff's own showing. Graham et al. v. O'Fallon, Ex'r, 3 Mo. R. 507. The defendant never, at any time, had the patent. The plaintiff knew this fact and proved it. 7. The plaintiff offered in evidence a sheriff's deed, dated 6th August, 1835, to him for the land in controversy. The objections to this evidence are: 1.

There is no lawful foundation to support it. 2. The plaintiff offered no evidence to prove this paper to be the thing it purported to be, to-wit, a deed--Williams v. Payton, 4 Wheat. 77; Coonce v. Munday, 3 Mo. R. 373; Digest of 1825, p. 484, § 30; Digest Mo. Laws, p. 289, § 45, 46, 47, 48. 3. The certificate of the clerk to the deed was not in evidence, and if it had been in evidence, there was no official seal to that certificate to give the certificate and deed authenticity. This, therefore, was no proof, and none other was offered. The plaintiff closed his evidence here, with the exception of proving the defendant in possession of the premises, and it is submitted whether the Circuit Court has not erred in the admission of illegal testimony on the part of the plaintiff as alleged by the defendant.

The second error assigned is, that the Circuit Court excluded legal testimony offered by the defendant on the trial. The evidence offered to be given on the trial by the defendant, and excluded by the court, was, first, a covenant from John A. Veitch to Joseph McCoy (having first proved the legal execution thereof by John A. Veitch by the subscribing witness to the covenant), by which covenant Veitch acknowleged to have received from McCoy one hundred and twenty dollars for the land in controversy, and undertook to make McCoy a good title therefor so soon as he obtained the patent; and, furthermore, he covenants with McCoy that he, said McCoy, his heirs and assigns, shall and may enter into and upon said piece or parcel of land, and from that date henceforth receive the rents, issues and profits to his and their own use. This covenant is dated 2d August, 1834.

The defendant then offered in evidence to the jury (having first proved the hand-writing of the subscribing witness thereto, and that from common report he was dead in Texas), an agreement, under seal, between Joseph McCoy and Russell, the defendant, by which agreement McCoy sold the land in dispute to Russell for one hundred dollars, payable in three and nine months, for which Russell had given McCoy his notes. McCoy also covenants to make Russell a good title to the land so soon as he received a title himself; and, furthermore, covenants with Russell that he, said Russell, his heirs and assigns, shall and may enter into and upon the said premises, and from that date henceforth receive the rents, issues and profits thereof to his and their own use. This agreement bears date 23d September, 1834. These contracts are bona fideand stand unimpeached. It is difficult, therefore, to assign even a plausible ground for their exclusion from the jury by that court--Peak's Ev. 101, 102, 103-4; 1 Stark. Ev. 330, 337, 341; Jackson v. Burton, 11 Johns. R. 64. They were proved, before offered in evidence, according to law. Then supposing this evidence to have gone to the jury, what would have been its legal effect upon the case? The answer must be, the plaintiff would have lost his suit. This evidence shows a right to, and a lawful possession in, the premises in controversy in Russell against Veitch, and Waldo, who claims under him. Waldo, if his proceedings had been legal, would in virtue of them take the place of Veitch; he would have all the right that Veitch had on 16th August, 1834, to the land, but no more, and would take it subject to all...