Helton v. Belcher, 114 Ky. 172

Helton v. Belcher

114 Ky. 172 | Ky. Ct. App. | 1902

Opinion op the court by

JUDGE HOBSON

— Apfibming.

On December 5, 3871, John Hutchens obtained from the Commonwealth a patent for 300 acres oif land in Clay county, and on February 3, 1877, he sold the land by title bond to Benjamin Saylor, who assigned the bond to W. J. Taylor, and by him it was assigned to appellee, Judy Belcher. After this, St.okley Belcher, her husband, sold about fifty acres of the land to appellant, Carlo Helton, for $20, which was paid in a cow; but his wife declined to stand to the trade, and refused to make Helton a deed, and he then tendered back to Helton the amount paid, but Helton refused to receive it. After this, Helton cut some timber off the laud, and Judy Belcher instituted this suit against him to recover in damages for the cutting of the timber. He denied her title, and on final hearing there was a verdict and judgment in her favor for $9, from which he appeals.

The ground of reversal relied on is that the court allow*174ed her to read in evidence the title bond above referred to, without proof of its execution; also a commissioner’s deed made to her pursuant to the bond, without the judgment under which it was made. As the title bond was more than twenty years old, came from the proper custody, and had been carried into grant, and appellant had entered, looking for title to appellee, who held under it, it was properly received in evidence without proof of its execution. The common-law rule was that a commissioner’s deed should not be admitted in evidence unless supported by the judgment authorizing it; yet it was not necessary to produce the previous proceedings, but only the decree itself, and the conveyance made in conformity to it. Grebbin v. Davis, 9 Ky., 16. But by our Code of Practice it is provided that a commissioner’s deed shall “refer to the judgment, orders and proceedings authorizing the conveyance, so that the same may be readily found, and that it “shall pass to the grantee the title of all the parties to the actiota or proceeding.” It must be examined and approved by the court, and its approval “shall be endorsed on •the conveyance and recorded with it.” Civil Code, secs. 395-398. It must be recorded where by law it would have been recorded if made by the parties in person. Civil Code, sec. 400. By section 519, Kentucky Statutes, it is further provided: “Certified copies of all instruments legally reclorded shall be prima facie evidence in all courts and tribunals of this State.” It will thus be seen that these statutes taken together, in substance provide that the deed, when examined and approved by the court, and so indorsed, may be legally recorded,, and that a certified copy of this record shall be prima facie evidence in the courts of the State. When a deed is made by an agent, his power of attorney must be introduced, else his authority to make *175tlie deed is not shown. And so, independently of the statute, when a commissioner’s deed is introduced, the judgment authorizing him to make it must be shown; for he is a mere ministerial officer, and there is no presumption in favor oí his authority. But when, under the statute, the approval of the court is indorsed on the* deed, this evidences the authority of the commissioner to make it. There is a presumption in favor of the regularity of judicial proceedings, and the deed so indorsed is therefore prima, facie regular. The production of the judgment would show nothing more than the indorsement of the court’s approval on the deed shows. This, indorsement entitles the deed to be recorded, and a copy of this record is prima facie evidence under the statute. We are therefore of opinion that the court did not err in allowing the title bond or the copy of the recorded deed to be read in evidence.

Judgment affirmed.