Addis v. Graham

88 Mo. 197 | Mo. | 1885

Black, J,

This action of ejectment was commenced in 1882. In 1857, Pinson entered some four sections of land in Barton county and received patents therefor. The eighty acre track in question is a part thereof. Plaintiffs claim title by virtue of a deed from Pinson and wife to Wamsley made on first of February, 1859, conveying these Barton county lands, and a deed froni Wamsley to Brummett dated November 2, 1860 ; they also claim through six or seven other deeds about which no question is made here. Mr. Burkhart testified that he had been in the recorder’s office of that county since 1868 ; that the deeds filed in 1859 and 1860 were recorded in books B and C ; that those books were mutilated and to a great extent destroyed during the late war ; that such portions as were legible "had been transcribed ; and that the original books were in a better condition when copied than at the time of trial, in 1883. Plaintiff then read in evidence from a mutilated leaf such portions of a deed as could be deciphered. This showed a deed from A. L. Pinson and wife to Alexis Wamsley to lands in Barton county, formal in all respects, to and including the description of several parcels of land, but not the one in question, then only a few words here and there could be made out, showing, however, further words of description. The transcribed record was also read, which is substantially the same, save that a few more words are made to appear. The transcribed record of the deed from Wamsley to Brummett was also read, which is full and formal in all respects save that hereafter noticed, and included the property in question. Numerous objections were made and exceptions saved to the evidence received by.the court.

1. The act of March 30, 1883 (Laws 1883, p. 130), provides" that these transcribed records ‘£ shall be entitled to the same faith and 'credit that the original records * * ■ * .were entitled to ’ ’ and £ £ shall be received in all courts of this state as prima facie evidence of the contents of the original deed records.” We do not understand it to be insisted here that this law is unconstitutional, as it was below. Let it be conceded that these transcribed records stand upon the same footing as the original books of record and that tliev are evidence only of what appears upon their face.

2. These records do not show in either case the seal of the officer taking the acknowledgment; nor is there any note of the place where the seal was placed. The recorder is not required to copy the seal of the officer who took the acknowledgment. It is sufficient if the officer states in the body of the acknowledgment that he affixed the seal'of his office. This authorizes the presumption that the seal was affixed. Geary v. City of Kansas, 61 Mo. 379 ; Norfleet v. Russell, 64 Mo. 177. This statement is clearly made in the body of the acknowledgment in the one case and we think it sufficiently appears in the other.

3. It is further contended that these acknowledgments were insufficient to entitle the deeds to be recorded at all, and hence the records should have been excluded. The acknowledgment to the deed to Wamsley, as shown by the transcribed record, purports to have been taken before the clerk of the county court of Henry county, in •which Pinson, the grantor, resided at the time. It is a formal acknowledgment to and including the statement that the wife relinquished her dower when it proceeds : £ £ freely, voluntarily and without compulsion or undtbe influence of her husband. In witness whereof I have h 'eretonto set my hand and affixed the seal of said court this the-day of February, 1859. L. H. Tott, clerk.” The italicised words do not appear, but blank spaces for them or words of similar import do appear. The omitted words, as to the wife’s acknowledgment, are wholly immaterial here, for the question of dower is not involved. The acknowledgment of the deed made by Wamsley was taken before the clerk of the circuit court of the same county and is full and formal save it is signed, ££ Richard —— clerk.” Now as these acknowledgments are formal in all other respects, were taken before recognized officers, and in view of the condition of the old records and the inability of the parties to produce the original deeds, we may presume,. they were formally filled out and signed, even if anything- more should be required than now appears. ■ Presumptions are constantly made in favor of the regu-. larity of the acts of public officers. In Stephen’s Digest of Law of Evidence, article 101, the rule is thus stated : “When any judicial or official act is-shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” 'This or any other statement of the rule, in the nature of things, must be more or less vague. The rule can only.be understood by an examination of decided cases. Best’s Prin. of Evid., sec. 355. A statement on a composition deed that the deed had been duly registered pursuant to the bankrupt act, was held to b a prima facie evidence that an affidavit required by the act was in pursuance thereof delivered to the registrar with the deed. Id. sec. 359. We have just had an instance of the application of the rule where the seal of the officer is not shown by the record, but is presumed to have been affixed to the deed. See, also, Long v. The Jop. M. & S. Co., 68 Mo. 422. The presumptions made in the case at bar are in harmony with all the probabilities and not opposed by a single circumstance in evidence.

4. The plaintiffs did not have these deeds in their possession. It was also shown that Wamsley’s papers had been destroyed at the time these records were defaced. His administrator and the administrator - ofBrummett, show that diligent search had been made and the deeds could not be found. This was sufficient to entitle the plaintiff to resort to secondary evidence. 1 Gfreenl. Evid., sec. 558, and note c to sec. 84 (4 Ed.) Where a record is partly destroyed or lost the remaining portion should be introduced. Nims v. Johnson, 7 Cal. 110. The real question, therefore, was whether the lands in question were included in the Pinson deed. This it was competent to- show by parol evidence, -both-as to the deed and record. Whart. L. Evid., secs: 129 and 135 ; Greenl. Evid., secs. 84 and 509. The declarations of Pinson made in 1859 that he had sold his Barton county lands to Wamsley and his declarations made to., young' Brummett just before this suit was commenced, tending to the same result, were competent as against him. The objection that this and the other evidence’allowed plaintiff to make title by parol evidence is not tenable. The whole purpose of the evidence was to show the existence, loss and the contents of the deed' and record. If the deed was executed, acknowledged and recorded, the loss of the deed and the destruction of the record could not affect the grantee. As-to him and his grantee it was still a properly . recorded deed.

For a period of twenty years, Pinson paid no attention to the land; he was present at the trial and on th§witness stand, and did not pretend to say that he had not sold this land. The judgment is right and it is affirmed.

All concur.