49 Mo. 531 | Mo. | 1872
delivered the opinion of the court.
The adverse claims of both parties arise from the same deeds, which were the foundation of the several claims in Musick v. Barney, ante, p. 458. In the present case Eike, who purchased
Upon the trial the court admitted in evidence, on behalf of defendants and against the plaintiffs’ objections, a certified copy of this record^, but before its admission the loss of the original was proved, and the recorder of deeds of Audrain county, in 1837, still living, testified that the record was made by him; that it was made from the original deed, and carefully compared; that from several circumstances named by him, he distinctly remembers the original deed, and the fact that he copied it upon the records, and heis certain that he made a correct copy. The original record was also offered in evidence, which corresponded with the copy. Other witnesses testify to the relations of Herrick and Eyler, showing that the former was largely indebted to the latter and others, and speak, though with less certainty, of having seen at the time, a- deed from Herrick to Eyler, and think the copy exhibited was a copy of the same, and speak of the general understanding in regard to' the sale. It was also shown that all the persons named in the deed, and others likely to know specifically of its execution, are dead; and it was not disputed that the copy produced was a correct transcript from the record. The objection to this evidence was: first, because the execution of the original instrument was not proved; and, second, because it was a copy of a copy.
If there is no evidence tending to prove the execution of an instrument offered in evidence it should be withheld from the jury; but if competent evidence is submitted, and the best the nature
Do not these facts tend to prove that there tvas such a deed?
Cotemporaneous entries, not only of acts and occurrences, but of Copies of instruments, if made in the course of business, or where they would be naturally looked for, are often received, and especially when sustained by other evidence. In Allen v. Parish, 3 Ohio, 107, the existence of a lost conveyance was in dispute. It had not been recorded according to law, but the notary before whom it was acknowledged had copied it upon his notarial record. The witnesses, parties and notary being dead, this copy was admitted in evidence as tending with other ercumstances to show the existence and contents of the deed, and without any specific proof of the signatures. In Winn et al. v. Patterson, 9 Pet. 663, an ancient power of attorney had been recorded in the wrong county and was not a legal record. The subscribing witnesses were dead, and as the original power was lost, their handwriting could not be proved; but the person who made the record was alive, .and testified that he knew one of the subscribing witnesses and his handwriting; that he believed it to have been genuine; for, being signed officially, it must have induced him to commit the paper to record. He also compared the copy produced in court, and testified that it was a copy of the original and of the record. The court admitted the copy in evidence, although the witness did not pretend to recollect the handwriting, but founded his belief of its genuineness upon the fact that he had recorded the paper; because, from lapse of time, death of parties and witnesses, and loss of original, better evidence could not be produced. (See also Jackson v. Rice, 3 Wend. 180; Garwood v. Dennis, 4 Binn. 314.)
Upon the second point we have to say that the copy of the record was not relied on, but the original record was also intro
In regard to notice of the existence of the deed under consideration, some facts are shown not considered in Musick v. Barney. At the time of the execution sale and purchase by Pike, an agent ef Fyler appeared and gave public notice of his claim, so that Fike must be held to have purchased with notice. It also appears that the deed from Fike to Ely was made without a money consideration ; -hence no notice to Ely or heirs was necessary; and all the other plaintiffs purchased after the act of 1847, making the records of deeds defectively acknowledged to operate as constructive notice.
The judgment is affirmed.