Crispen v. Hannavan

50 Mo. 415 | Mo. | 1872

Wagner, Judge,

delivered the opinion of the court.

This was an action of ejectment to recover certain military lands lying in Carroll county. The two deeds offered in evidence by the plaintiff and received by the court were, I think, improperly admitted. One of the deeds was acknowledged before a notary public of the District of Columbia, and the other before an officer of like character in the State of Kentucky. The statute provides that every instrument of writing executed out of this State and within the United States, which conveys or affects military bounty lands in this State, and which is acknowledged or proved according to the laws and usages of the place where executed, shall be received and recorded in the county where such lands lie ; and such instrument is then made as valid and effectual as if acknowledged or proved in accordance with the laws of this State. (Wagn. Stat. 278, §§-35, 36.) But it is nowhere shown that at the time of the execution of the deeds a notary public was authorized to take the proof or acknowledgment of the same, either in the District of Columbia or in the State of Kentucky, nor was there any such power or authorization existing in this State.

The copies of the deeds from the record were equally inadmissible, for the statute declares that copies of such instruments, or the record of the same, duly certified by the recorder of the county in which the .same may have been recorded, shall, upon proof of the loss or destruction of the original instrument, be read in eyi? dence with like effect and on the same conditions as the original instruments. (Wagn. Stat. 279, § 38.) The deed, to be effectual, if not acknowledged in conformity with the laws of this State, must have.been proved and acknowledged in.accordance with the laws of the State where the same was executed, and a copy can only be used upon showing the loss or destruction of the original. (Barton v. Murrain, 27 Mo. 235.)

No attempt was made to show that 'the original instrument was lost or destroyed, and therefore the law did not authorize the introduction of the copy as evidence. , Nor was the deed admissible as an ancient deed or document. It is true it possessed the requisite age, blit something more is necessary to justify the admission of this class of evidence. Mere antiquity in date is not sufficient. It must be otherwise accounted for, or shown that it comes from the proper custody. (1 Greenl. Ev., § 142.) The sections of the statute (Wagn. Stat. 595, §§ 35, 36) relied on by the plaintiff are not applicable to this case. They relate and have reference to the general law of evidence, while a peculiar and different provision is made to apply to military bounty lands.

In' my opinion, the court erroneously admitted the decree in evidence against the objections of the defendants.

Judgments and decrees conclusively bind' all who are parties or privies to the proceeding, and privity denotes mutual or successive relationship to the same rights' of property. Privies, whether in estate; in blood, or in law, are estopped from litigating that which is conclusive upon him with whom they are in privity. (Carver v. Jackson, 4 Pet. 85; Case v. Reeve, 14 Johns. 81.) But while this principle is firmly established in justice, and prevents again drawing matters in controversy which have been previously settled by solemn judicial proceedings, it is also an obvious axiom that no man ought to be bound by a decree or judgment to which he was a stranger. There is nothing in the record to show that the defendant was identified with the parties whose rights were passed upon and litigated by the decree, and without this it cannot be binding upon him.

Eor the wrongful admission of evidence, therefore, the judgment will be reversed and the cause remanded.

Judge Bliss concurs. Judge Adams absent.