Whitman v. Giesing
Decision Date | 23 December 1909 |
Citation | 123 S.W. 1052 |
Parties | WHITMAN et al. v. GIESING et al. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.
Action by T. P. Whitman and others against Benjamin Giesing and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded, with directions.
This suit was instituted in the circuit court of Pemiscot county by the plaintiffs against the defendants, under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to quiet title to section 31, township 20 north of range 12 east, situate in said county. The petition was in conventional form, and the answer contained, first, a general denial, and, second, a similar claim of title in themselves, and prayed that the title be ascertained and determined in their favor, as provided for by said statute.
At the request of counsel for defendants, the trial court made the following special finding of facts, and gave the following conclusions of law, viz. (formal parts omitted):
Conclusions of Law.
"Upon these facts the court finds that the law is for the plaintiffs, and that the plaintiffs are the owners in fee, and that the defendants have no right, title, and interest in and to said land, and that plaintiffs T. P. Whitman, A. T. Whitman, George Whitman, Maberry Whitman, Kate McClenden, Rachel Robertson, Fannie Stone, and Mollie Sutton are each entitled to an undivided one-ninth interest in and to said land in fee, and that plaintiffs T. P. Randolph and Annie Bass are each entitled to an undivided one-eighteenth interest in fee in and to said land, and that defendants have no right, title or interest in and to said land."
The court then rendered judgment accordingly for plaintiffs.
Practically all the findings of fact are conceded to be true, or rather not disputed, except counsel for defendants insist that there was no legal evidence introduced tending to show that Theodore P. Whitman, the ancestor of plaintiffs and through whom they claim title by inheritance, ever owned the land in controversy. The only evidence offered by plaintiffs tending to show Pemiscot county, which was the common source of title, ever conveyed the title to the land in controversy to said Whitman, was a certified copy of an alleged entry in Carleton's Abstracts, which counsel for plaintiffs insist was admissible in evidence under the authority of an act approved March 28, 1901, referred to by the court in the special findings of fact. Counsel for plaintiffs offered a certified copy of said entry, which reads as follows: That offer was objected to by counsel for defendants for the reasons: That the entry offered in evidence is hearsay; and for the reason, second, that no authority of law has been shown making the entry, whether certified or not, evidence of land titles in any court in this state; third, because the paper offered and read by counsel as alleged evidence in this case is a private writing not made by any officer of any court in this state, and it is made and preserved merely by such private party for his own personal use and benefit, and because as yet no foundation of any kind whatever has been laid for offering the alleged abstract. Those objections were overruled, and the entry was admitted in evidence, to which ruling defendants duly excepted.
The defendants, in support of their claim of ownership to this land, offered a patent from Pemiscot county to the defendants Benjamin and Caroline Geising, dated June 19, 1905. This patent is regular, and conforms to the statute, and recites the full payment of $780 to Pemiscot county, Mo. The money was paid to the treasurer of that county.
For the purpose of disproving the correctness of the alleged "certified copy" of Carleton's Abstracts, offered by the plaintiffs, but limiting the probative effect of the offering to that purpose, the defendants offered in evidence the original page in Carleton's Abstract relating to section 31, township 20 north of range 12 east. And that this court may have before it the actual physical arrangement of or original page of the abstract with every word, line, letter, mark, figure, and character that is found upon it, we herein below set out a copy of that page with everything on it that is on the original. Moreover, we hereinbelow set out every...
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