103 Ky. 730 | Ky. Ct. App. | 1898
delivered the opinion oe the court.
In 1845 there was issued to Robert Helton a patent for 450 acres of land on Straight Creek, Harlan county, Ky. The patentee was the ancestor of the appellants. He died in 1883 or 1884. The appellants claim that they inherited the land from their father and seek to recover damages for alleged trespass upon it. The appellee, Parks B. Howard, claims the land and the appellee, Asher, claims certain timber on it, under a contract with Howard. It is conceded that Robert Helton acquired title to the land by virtue of his patent from the Commonwealth of Kentucky. The appellees seek to show that Robert Helton in his life t-ime divested himself of the title to the land by a conveyance of it to one Z. B. Saylor, and that therefore the land did not descend to the plaintiffs. To establish the fact that Robert Helton had conveyed the land to Saylor, they offered in evidence a record book of deeds of Harlan county, in which was recorded a instrument called a deed from Robert Helton to Saylor. It is in the usual form of a deed in which Robert Helton is called the party of the first part and Z. B. Saylor party of the second part, and it appears not to have been signed by Helton. There is a certificate recorded with it which purports to be a certificate of one John G. Crump, clerk of the Harlan county court. The certificate - recites that “the deed from Robert Helton to Z. B. Saylor was this day produced to me in my office and acknowledged by Robert Helton to be his act and deed.” The instrument and the clerk’s certificate bear date March 3, 1851. The instrument is concluded in words as follows: “Given under my hand the day and
The instrument in question was invalid. The certificate of the clerk could not impart any validity to it. It was essential to its validity that it should have been signed by Helton. Had it been signed by him and acknowledged before the clerk, then it would have been a recordable instrument. To enable the clerk to record the . . . . instrument it was just as essential that it should have been signed by him as it was for him to have acknowledged it before the clerk. As the paper was not properly on record the copy of it offered was inadmissible as evidence. Had it not been invalid and inadmissible as evidence for the reason we have given, then the court should have sustained the appellant’s motion to exclude it from the jury, because the calls in it did not embrace the land in controversy. This was proven to be true by the appellee, Howard, and the surveyor who was introduced as a witness by the appellants.
The appellees seem to have felt that the paper did
(1.) Due execution and genuineness of an alleged lost paper must be shown before secondary evidence is admissible to prove its contents. (2.) That the paper is lost and can not be found. Elwell v. Cunningham, 74 Maine, 127; Kerney v. New York, 92 New York, 611.
In M'Intire, &c. v. Funk’s Heirs, Littell’s Selected Cases, 427, the court was considering the question of proving the contents of the title bond which was claimed to be lost and said: “Before such evidence could be admitted, the execution of the bond should be proved by competent proof.”
In view of the fact we have held part of the testimony incompetent upon which the defendants relied to show due execution and genuineness of the alleged lost paper, we forbear to express an opinion as to the sufficiency of the other testimony offered by the appellees to establish that fact. The court can hear what testimony the defendants may offer in relation to that matter as well as to the loss of the alleged paper, and the court can determine whether the evidence is sufficient to authorize it to submit to the jury under proper instruction, the questions as to the execution and delivery of the title bond by Helton to Saylor, and as to whether, if such title bond existed, it embraced the land in controversy.
The court permitted the appellee, Parks B. Howard, who claims the land in this suit, to testify as to the conversation which he had with the deceased, Bobert Helton. This testimony is clearly inadmissible under sub-section
It follows from the view we have expressed in regard to the unsigned deed, that thfe court erred in instructing the jury with reference thereto.
The judgment is reversed with directions that the appellants be given a new trial, and for proceedings consistent ~with this opinion.