Appellees (hereafter called complainants) filed their bill to remove cloud from title to a tract of 5,000 acres in Perry county, Tenn., entered by Isaac W. Stanley in 1841. They deraign title from Stanley through deed dated May 22, 1851. by John Montgomery (claimed to have been Stanley’s administrator) to Secrist, who conveyed to Stephens August 4, 1855, and by conveyance July 1, 1858, by the clerk and master of the chancery court of Perry county to Brown and Miller (complainant’s ancestors) under decree of that court in attachment proceedings brought by Brown and Miller against Stephens. Butterfield and Peck (hereafter called defendants) originally claimed about 2,875 acres of the tract by purchase in 1889 (for value and in ignorance of the Stanley entry and title) from claimants,
1. Had the Circuit Court Jurisdiction?
2. Did the Deed from the Clerk and Master to Brown and Miller Effectually Convey Stephens’ Title?
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The question remains whether an állegation of foreign citizenship prima facie implies an absence of a qualified residence in the state of the forum; because one might have both a foreign residence and also such a local residence as would be inconsistent with the right of attachment. The answer to this question depends to some extent upon the degree of liberality with which the attachment laws are construed by the courts of Tennessee. Speaking generally, it has been
Turning to the specific decisions of the courts of Tennessee, it was held in Klepper v. Powell, 6 Heisk. (Tenn.) 503, 506, 510, that:
“The allegation of the bill that ‘the defendant is not an inhabitant of the state’ substantially charges the fact of nonresidence as one ground for the attachment.”
And in Grubbs v. Colter, 7 Baxt. (Tenn.) 432, where an attachment bill was demurred to upon the ground, among others, that it contained no allegation that defendant is a nonresident of the state, the court said:
“The bill, after the address, gives the names of the parties complainant and their residence, and then the name of the defendant, and his residence as being ‘Lee County, Arkansas,’ and proceeds to allege that ‘the defendant, a citizen of the state of Arkansas, is justly indebted to them in the sum oí ¥ 125.52, due by promissory note,’ which is exhibited with the bill. We think it is sufficiently alleged that defendant is a nonresident of the state in the statement of his residence in Arkansas, and that this nonresidence gives the chancery ■ court jurisdiction.”
The conclusion reached is that the affidavit for attachment was ju~ risdictionally sufficient under the Tennessee rules.
Defendants introduced the newspaper files for the purpose of showing that the publication of the. order of appearance of defendant in the attachment suit was not had as provided ,by the order. This evidence was extraneous to the record, and was clearly incompetent to impeach the decree. Walker v. Cottrell, 6 Baxt. (Tenn.) 257, 275, 276.
“The court shall render such decree as the nature of the ease may require, * * * and, should the property attached be insufficient to pay the amount of the decree, an execution may issue for the balance,” etc.
The bill contained a prayer for general relief, which is broad enough to cover a personal decree, if one could properly be rendered. But as defendant was a nonresident, and did not appear, and was not personally served with process, personal decree would have been a nullity. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Paper Co. v. Shyer, 108 Tenn. 444, 464, 67 S. W. 856, 58 L. R. A. 173. The decree in fact found Stephens indebted to Brown and Miller in a stated sum. The failure to provide for enforcing the payment of such indebtedness by execution against other property did not affect the
It follows that in our opinion the deed from the clerk and master to Brown and Miller effectually conveyed Stephens’ title.
3. Was the Record of the Deed from Montgomery to Secrist Sufficient Proof of the Effective Conveyance'of Stanley’s Title?
The original deed was not produced. Its execution and delivery were shown by certified copy from the public record. The material parts of the deed are as follows:
“This indenture made and entered into this 22nd day of May, 1851, by and between, John Montgomery of the one part and Henry Secrist of the other part, the former a citizen of the county and state of Tennessee, and the latter a citizen of Hamilton county and state of Ohio, witnesseth: That for and in consideration of the sum of one hundred dollars in hand paid to the said John Montgomery, the receipt whereof is hereby acknowledged, and this indenture further witnesseth that whereas Isaac W. Stanley in. his life bargained, sold and executed his title, and thereby binds himself, his heirs, executors, administrators to make or cause to be made to the said Henry Secrist on the payment of the purchase a good and sufficient legal title to the following described tract of land. Now the said John Montgomery doth bargain, sell and convey as administrator of the estate of the said Isaac W. Stanley the said tract of land hereinafter mentioned and described, to the said Henry Secrist, to wit: [Description follows.] To' have and to hold the said tract or parcel of land with its appurtenances to the said Henry Secrist, Ms heirs and assigns forever, and the said John Montgomery administrator aforesaid binds himself, his heirs and representatives to warrant and defend the title of said land to the said Henry Secrist, his heirs and assigns forever, against any claims to be made by himself, or any claims of any person claiming through or under him the said John Montgomery but no further, this conveyance is made in satisfaction and full discharge of the above-mentioned title bond, which bears date 2Sth day of January, 1848, and now in the hands of one Adam Peabody, who is at this time in the state of Missouri and cannot be had at this tinje to be delivered up and cancelled. In testimony whereof the said John Montgomery doth set his hand and affix his seal, in presence of T. M. Brashear, William H. Storme.
“John Montgomery. [Seal.]”
The execution of the deed was acknowledged (as shown by certificate of clerk of county court thereon) by “John Montgomery * , * * for the purposes therein contained”; the alleged administratorship not being stated in the certificate. It was recorded on the day of its date. Defendants criticise the effectiveness of the deed (a) as not ■purporting to be the deed of Montgomery as administrator; (b) because the fact of Montgomery’s administratorship is not proved; (c) for lack of proof of the making of Stanley’s alleged contract to convey and the payment by the contract purchaser, as well as for insufficiently definite recitals of the terms of the contract. The record contains no direct evidence of either of these facts, unless the recitals in the deed constitute such proof. Complainants contend that the deed plainly purports to be that of Montgomery as Stanley’s administrator; that, being an ancient deed, its recitals are presumptive evidence of its truth; and that such recitals establish presumptively the facts of Montgomery’s administratorship, and the making and per
We have no difficulty in holding that the deed purports to be that of Montgomery as administrator, and not Montgomery’s individual deed. This, we think, clearly appears from a consideration of the entire instrument. The instrument is an ancient deed. It was made not merely 30 years, but 50 years before its introduction in evidence. Proof by the register was sufficient proof of its execution and delivery at the date, thereof. It was acknowledged in proper form for registry (Code 1858, §§ 2038, 2039). and was so entitled to registration (Code 1858, § 2030, subd. 4). The statute makes a certified copy of such record evidence (Code 1858, § 3791), and the registration is prima facie evidence of execution and delivery. Goodlett v. Goodman Coal & Coke Co., 192 Fed. 775, decided by this court January 3, 1912. Proof of possession under the deed is not indispensable. Applegate v. Lexington, etc., Min. Co., supra. The fact that the original deed is not produced by complainants justifies no inference 'opposed to the prima facie evidence of execution and delivery afforded by the registry. This is so because complainants, in view of the hostile method by which their ancestors acquired the Stephens' title, would not naturally have had the Montgomery deed. The fact of the recitals cannot be determined on the basis of estoppel against defendants, because, while the latter now claim under the Stanley title, they do not claim under the Montgomery conveyance. Their defense would be as good if they had not taken title írom the Stanley heirs, for complainants must recover upon the strength of their own title. Bui it is well settled that recitals in an ancient deed may be evidence as against parties to the deed, but who do not claim under it. Carver v. Astor, 4 Pet. 1, 7 L. Ed. 761; Crane v. Morris’ Lessee, 6 Pet. 598, 8 L. Ed. 514: Deery v. Cray, 5 Wall. 795, 18 L. Ed. 653; Fulkerson v. Holmes, 117 U. S. 389, 397, 398, 6 Sup. Ct. 780, 29 L. Ed. 915; Stockley v. Cissna (C. C. A. 6th Cir.) 119 Fed. 812, 824, 56 C. C. A. 324; Norris v. Hall, 124 Mich. 170, 175, 82 N. W. 832. While it is sometimes broadly stated that recitals in an ancient deed are themselves proof of the facts recited, even as against strangers, we think the real question is whether the facts before the court, including the recitals, justify the presumption that the recitals are true. If in this case there is sufficient presumptive evidence of Montgomery’s administratorship, the recitals in the deed are, in our opinion, presumptive evidence of the making of the contract, by Stanley to Secrist, the payment by the latter of the purchase price, and thus of the authority of the administrator to convey. Assuming, as we think we must, that the competency of the recitals by the grantor (as a declarant) is to be considered as if the grantor were a witness, it is to be observed that the grantor assumes to speak of his own knowledge. If he was administrator, he would very naturally have had personal knowledge of the truth of the recitals in question. The recitals ac
'We.are thus brought to the qxxestion whether there was sufficiexit competent proof of Montgomex-y’s administratorship. We remark, in passing, that this administratorship was not expressly admitted by defendant’s answex-, and coxnplaixrant was thus required, under the federal px-actice, to prove the fact. Brown v. Pierce, 7 Wall. 205, 211, 19 L. Ed. 134; Lovell v. Johnson (C. C.) 82 Fed. 206; In re Doran (C. C. A. 6th Cir.) 154 Fed. at page ”469, 83 C. C. A. 265, and cases there cited. The statute in force in 1851 px-ovided that:
“No-person shall presixxne to enter xxpon the administration of any deceased person’s estate until he has obtained letters of admixxistration or letters testamentary.” Code 1S5S, § 2201.
Letters of administration could be graxrted by the county court, and in certain cases by the chancery court. Code 1858, §§ 2202, 2209, and following. By the Code of 1858, a record was requix-ed to be made of letters of administration. But, as we are not sure that this provision existed in or px-evious to 1851, we shall disregard it for the purposes of this opinion.
“I£ a power be recorded, so tliat the evidence is perpetuated, there can be no reason for admitting the deed without the power, however ancient it may be, for there is certain proof to be obtained, for which a mere presumption ought not to be substituted.”
In Reuter v. Stuckart, which involved the presumption of the existence of a power of attorney, the earlier case of Fell v. Young was distinguished, upon the ground that .the power, there involved was public and statutory.
It is true that in Deery v. Cray, supra, the recitals in the deed, with reference to a will, were considered competent evidence, but in that case the report shows that there was testimony of unsuccessful search for the will. There was in the case before us no proof of either the presence or absence of evidence in the public records of the courts of Montgomery’s appointment as administrator, except as there was evidence that a part of the records of the chancery court had been destroyed, but without reference to the records of administration proceedings, and no proof whatever of the loss or destruction of the records of the county court. Stanley’s death is proven, but it does not definitely appear whether it preceded the date of Montgomery’s deed. The court records either show Montgomery's appointment or they do not. If they so show, Montgomery's deed was competent and sufficient evidence of an effective conveyance of Stanley’s title. If they do not so show, the reason therefor is open to proof, whether because of a definitely known loss of parts of the record or of a presumptive loss by reason of a lack of system or attempt to preserve, or because of a practice not to make record; in other words, something to overcome the natural presumption of the making anti existence of a public record.
The record contains some evidence tending, in a greater or less degree, to corroborate the alleged fact of administratorship by way of proof of (1) later actions based on the deed, and (2) the alleged acquiescence by Stanley’s heirs. It appears that Stanley’s widow and children resided near the land for many years, after his death; that one of the boundaries, both of the Stanley tract and of one of the later entries which defendants have claimed, is a 350-acre tract entered by Stanley; that the tract here in question was publicly sold in Brown and Miller’s suit seven years after the administrator’s deed was given; that, so far as shown by the record, no claim was made by Stanley’s heirs of any title to this property except as, 49 years after the administrator’s deed in question, they made the deed to defendants before mentioned; - that Stanley had a large number of entries, presumably in this neighborhood, no showing being made as to what became of them. 'There are other circumstances lending more, or less corroboration in the direction stated.
On the other hand, the witnesses whose attention was called to the subject knew no such man as Montgomery in the neighborhood at the time, and, as we have said, there is no evidence on the subject of the existence, now or at any time, of public record. The force of the proof of later actions based on the Montgomery deed depends upon the extent to which Secrist and Stephens or Brown and Miller shall be shown to have asserted title otherwise than by the fact of the conveyances, as well as by the extent of possession by either of thfese parties; and the force of the alleged acquiescence of the Stanley heirs depends upon the extent to which, under the testimony, they will be shown or be presumed to have known of their father’s title to the land in question at his death, as well as of-the fact of the claim ma.de in the Montgomery deed. The evidence on many of the points to which we have referred is meager, and the subject is apparently not exhausted.
As the case now stands, viz., in the absence of competent evidence of Montgomery’s appointment, there is no basis for finding or declaring the existence of administratorship. Bor this reason the decree of the Circuit Court must be reversed. A direction that the bill be dismissed for this reason would, however, not be conducive to justice, and such direction should therefore not be made. Noble v. Seary, 223 U. S. 65, 32 Sup. Ct. 194, 56 L. Ed. —-, decided by the Su
The decree of the Circuit Court is reversed, with costs of this court to appellants, and the cause remanded to the District Court, with directions to take further proceedings therein not inconsistent with this opinion. Such amendments to pleadings as may be necessary under the views we have expressed will, of course, be allowed.