27 Neb. 306 | Neb. | 1889
This action was instituted in the district court of Franklin county, and was in ejectment for the possession of the west half of the southwest quarter of section 31, township 2 north, range 14 west, in that county. The petition was in the usual form. The answer denied plaintiff’s estate in the land and denied his right of possession. The cause was-
“Second. The verdict is contrary to law;
“Third. Errors of law occurring at the trial and excepted to by plaintiff at the time.”
This motion being overruled, plaintiff brings the causo to this court by proceedings in error. It appears from the record that the. land was patented by the United States to E. A. Kirkpatrick, and that on the 15th day of August, 1872, he sold and conveyed it by warranty deed to I. T. Roberts for the consideration of $400, and that on the 1st day of October of the same year Roberts, for the consideration of $500, sold and conveyed by warranty deed to the Franklin Town Company. Subsequent to Kirkpatrick’s conveyance to Roberts, and on the 17th day of .July, 1883, Kirkpatrick by a quit-claim deed for the consideration of $50, conveyed the land to plaintiff, and on the next day, for the consideration of $20, Roberts made a similar conveyance to plaintiff. The original deeds were not introduced in evidence, copies of the deed record being used. Those introduced by plaintiff were received without objection. Those introduced by defendant were objected to on the ground that no sufficient foundation had been laid for their introduction, there being no proof of the loss of the original deed, nor that they were not in the possession of the defendant. This objection was overruled, and the ruling of the district court is now assigned for error. Sec. 13, of chapter 73, of the Compiled Statutes of 1887, is in part as follows:
“ The record of a deed duly recorded, or a transcript thereof duly certified, may also be read in evidence with the like force and effect as the original deed, whenever by the*310 party’s oath or otherwise, the original is known, to be lost, or not belonging' to the party wishing to use the same, nor within his control.”
In Delany v. Erickson, 10 Neb., 500, where the deed to the grantor of the party wishing to use the record included a large number of descriptions of real estate in addition to that claimed by the party seeking to use the record, it was held that the record was competent evidence in the first instance, without proving the loss of the original deed. By an examination of that portion of the section above quoted, it will be observed that the record of a deed is competent evidence in the first instance whenever by the party’s oath or otherwise the original is known to be lost, or not belonging to the party wishing to use it, nor within his control. And it was very clear to the mind of the court, no doubt, and sufficient proof had been made, that the original deed, a copy of which was introduced in evidence, did not belong to the party wishing to use it, as he was a stranger to the conveyance and was not entitled to its possession or control. It may be admitted that so far as it was disclosed he claimed nothing under it, yet it was competent evidence for the purpose of showing that the grantor of plaintiff had parted with his title prior to his conveyance to the plaintiff, and that thereby plaintiff received no title by the quit-claim deed hereinbefore referred to, his grantor having no title to convey. If plaintiff recover at all he must recover upon the strength of his own title and not upon the weakness of that of his adversary. (Franklin v. Kelly, 2 Neb., 112; Morton v. Green, Id., 451; Butler v. Davis, 5 Id., 525; O’Brien v. Gaslin, 24 Id., 562.)
Defendant being in possession it was competent for him to show title in any party who was a stranger to the action for the purpose of defeating the alleged title set up by plaintiff. (2 Greenleaf on Evidence [14th Ed.], sec. 307.)
“It is a maxim of our law that the party in possession of property is considered to be the owner until the con
Again, it is insisted that the court erred in admitting in evidence the record of the deed from Kirkpatrick to Roberts, for the reason that the date of the acknowledgment, as shown by the certificate, was the 16th day of August, 1872, while the date of the deed itself was the 16th day of October of the same year. This objection cannot avail plaintiff in error. While there is a discrepancy between the date of the deed and the date upon which it was acknowledged, the date of the acknowledgment must prevail, and in that case the date of the instrument itself is of but secondary importance. The officer before whom the acknowledgment was taken, certified that upon the day named in the certificate the grantor appeared before him and acknowledged the execution of that particular deed to be his voluntary ac' and deed, and by such acknowledgment and subsequent recording, vitality was given to the deed as to third parties. As between the parties to it, it was valid and binding without either. (Harrison v. McWhirter, 12 Neb., 152.) There was no proof that the Franklin Town Company to which Roberts had made the deed of conveyance was incorporated under the laws of this state, nor that it still held the title conveyed to it by the deed referred to. As to the first contention that it was necessary to prove the incorporation of that company, it may be disposed cf in a few
Taking the whole case together it is apparent that although defendant in error may not have had the title to the property at the time of the commencement of the action or at the time of the trial, yet it is very clear that plaintiff had no such title and that he could not recover against anyone in possession. So far as we are able to see, the judgment of the district court was correct and will therefore be affirmed.
Judgment affirmed.