Harvey v. Thorpe

| Ala. | Jan 15, 1856

GOLDTHWAITE, O, J.

As to the action of the court in allowing the defendants to introduce evidence in opposition to their agreement in writing, we see no error. Conceding, so far as the present case is concerned, that attorneys may bind their clients by such admissions as were here made, it is only necessary to observe, that where they are made improvidently and by mistake, the court, ,sby means of its coercive powers over its own officers, has authority to relieve against the consequences of the admission; regulating its action in this respect with a just regard to the rights of both parties, which it can do by setting aside the agreement upon terms which will meet the justice of the particular case. — 1 Green. Ev. § 206. The evidence submitted to the court brought the question within the principle we have laid down; and the authority, to the extent it was exercised, was judicious.

As to the principal question in the case — the admission of parol evidence to contradict the transcript of the deed certified by the clerk : The English cases certainly lay down the rule very broadly, that there are no degrees in secondary evidence (Rowlandson v. Wainright, 1 Nev. & Per. 8; Coyle v. Cole, 6 Car. & P. 81; Rex v. Hunt, 3 B. & Ald. 506: Brown v. Woodman, 6 Car. & P. 206); while, on the contrary, the current of American authorities goes very strongly to show that, although the facts may warrant the admission of secondary evidence, the best kind of that character of evidence which appears to be in the power of the party to produce, must be offered. — U. States v. Britton, 2 Mass. 464; Kello v. Maget, 1 Dev. & Batt. 414; Renner v. The Bank of Columbia, 9 Wheat. 582-597; Den v. McAlister, 2 Hals. 46-53; Blade v. Nolan, 12 Wend. 173" court="N.Y. Sup. Ct." date_filed="1834-05-15" href="https://app.midpage.ai/document/blade-v-noland-5514244?utm_source=webapp" opinion_id="5514244">12 Wend. 173. We confess that the American rule appears to us more reasonable than the English; »nd we see great propriety, if there was an examined copy of an instrument in the possession of a party, in refusing to allow him to prove it by the uncertain memory of witnesses. A copy of a letter, taken by a copying press, would unquestionably be better evidence of the original than the Recollection of its contents by a witness; and the same reasons which would require the production of the original, if in the control of the party, would operate in favor of the production of the fac-simile, or of the examined copy. But, in all these cases, the strength of the proposition consists in the fact, that there is secondary evidence, in itsnatureand character better than that which the party offers, and that it is in his power to produce it. He certainly must be allowed to show, that what appears to be secondary evidence of a higher degree is not so in fact. In other words, he would be allowed to show that the paper, which purported to be a copy, was not in fact and in truth one.

To apply these principles to the case under consideration, the question is, whether the defendants below were concluded by the record of tit„ conveyance in the'office of the clerk of the county court. We should think it very unreasonable, that because the law authorized the conveyance to be recorded, that record should, in case of the loss or destruction of the original, be conclusive even on the parties to the deed. It would be more unreasonable still to give this effect to it against a stranger. That the legislature has the power to do so, is not denied; but we should require the use of the clearest and most unequivocal words to force us to such a conclusion.

The act of 1803 requires the clerk of the county court to record all conveyances of land lying in his county, duly certified and acknowledged, which are delivered to him for that purpose (Clay’s Digest, 154-155); and the thirteenth section provides, that, in case of the loss or destruction of the original deed, the record, or a duly certified transcript, shall be received in evidence, “ and be as good and effectual and available in law as if the original deed or conveyance had been produced and proved.” In giving to the record the same degree of force that the original'deed would have had, it was doubtless pre•sumed that the clerk- would make a true copy, “word for word,” as another section of the act requires him to do; and we think it was only the record when thus made that it was intended to invest with unimpeachable verity. In other words, to make it a record, it must be a copy. Even judicial records, made under the sanction of judicial officers, and in themselves originals, have not always been held conclusive as to jurisdictional facts. Here the act contemplates nothing but a copy; audit is to this copy, when made by the clerk, that it was the intention of the law to accord unimpeachable verity. It is prima facie evidence, on the ground that all officers must be presumed to have discharged the duties which the law requires of them; and the statute also dispenses with any further proof of the execution than the production of the record or the transcript. But we are satisfied that it could never have been intended to make the record as effectual as the original, unless it was a true copy; and we must, therefore, hold that it is not conclusive.

As to the relevancy of the deed made by Simonton, as the agentjof Shade, to Shields, and the letter to Simonton : It is clear float the letter conferred no authority on the latter to make the deed; and if it had, the conveyance as made was his act, and not the deed of Shade. It is to be remembered, however, that the main question in the case was the location of the premises. The lot sued for commenced one hundred and seventy-five feet east from Royal street; and if the jury should come to the conclusion that there was no mistake in recording the deed from Forbes & Co., to Chamberlain, Smoot and Slade, then the deed from Robertson to Shade would include the premises sued for; and it was to resist the right of the plaintiffs in that aspect, that we understand the deed was offered. It was admitted that the defendants had been in possession since August, 1818; and if their possession was to be referred to this deed, then the question would be, whether the jury might not presume what was necessary to make that deed effectual. Upon authority, the rule is, that where a party has proved a title to the beneficial ownership, and a long possession consistent therewith, courts will leave it to the jury to say whether a conveyance should not be presumed. — Green. Ev. § 46; Cow. & Hill’s Notes to Ph. Ev. vol. 5, p. 267. A strong case would be, where a party-held possession for more than twenty years under a bond for titles, having paid the purchase money. Here, a proposition is made by the owner of a lot to his agent, directing him to close the bargain for a sale; which is apparently done, and • the purchase money paid to the agent. In such a case, after twenty-eight years uninterrupted possession, the rule we have adverted to might well have warranted the court in submitting it to the jury to presume a deed from Shade to Simonton, to support the conveyance which the latter had made; or they might, upon the same state of facts, presume that a deed was made directly to Shields. ■ Wo see no error in the ruling of the court in this respect, or in the charge given in relation to the same question.

Neither do we regard the admission of the other deeds as erroneous. By the decision of the court upon the agreement made by the counsel, it became necessary for the appellees to show that the'plaintiffs had no title to the premises sued for; and it was also necessary to make this prdbf, in both aspects in which the case presented itself. If the deed from Forbes & Co. to Chamberlain, Smoot and Slade called for one hundred and fifty feet on Dauphin street, then it would be necessary to show that the plaintiffs had no title to lot number nine; while, if it called for but one hundred feet, it would be necessary tb show the same fact as to lot number seven. We have already seen that the deed from Simonton to Shields was admissible; and every other deed introduced tended to show that the title to lot number seven was not in the demandants.

Judgment affirmed.