79 Iowa 626 | Iowa | 1889
Lead Opinion
Rehearing
OPINION ON EEHEAEING-.
In a petition for rehearing filed by counsel for appellants, we are requested to re-examine the question determined in the second point of the foregoing opinion. It is claimed that although, in the absence of fraud, the original instruments would be admissible in evidence although not stamped, yet that the stamp act provided that a record of an unstamped instrument should “be utterly void, and shall not be introduced in evidence.” There was no evidence that the instruments in question in this case were unstamped, except what might be inferred from the fact that the record does not show that stamps were affixed to the original instruments. It is not claimed that any act of congress required a recorder to make a copy of the stamp in the record, nor to refer to it in any way in reading the record. It was the duty of the recorder to refuse to record the instruments until proper stamps were affixed, and we will, therefore, presume that the originals were stamped. We are cited to the case of Switzer v. Knapps, 10 Iowa, 72, as an authority in support of appellants’ position. It is true that it is said .in that case that “a copy of a deed without any mark indicating a seal is evidence that there was none.” But it appeared in that case that the deed' was not in fact under seal; and, so far as we are able to understand the facts of the case, the question was whether the record imparted notice to third persons. If it be conceded that the deed was not in fact under seal, the question as to what presumption should obtain in case the record did not show that the original was under seal was not in that case. Other authorities are cited by counsel. As we understand them, they do not present the question now under consideration. They do not determine that the recorder should undertake to copy the stamp, or make reference thereto in the record,
In conclusion, we have 'to say that we would hesitate long before sustaining the claim made by counsel. The record evidence of titles to real estate is of too much importance to be held void for the mere omission of recorders of deed to make memorandum that stamps were attached to deeds. We should rather presume that the recorders did their duty, and recorded such instruments only as were properly stamped. We adhere to our original opinion, and the decree is
Affirmed.