30 Kan. 312 | Kan. | 1883
The opinion of the court was delivered by
This was an action of ejectment, brought by plaintiff in error, plaintiff below, in the district court of Wyandotte county, to recover possession of four lots in the-city of Wyandotte. Plaintiff claims title in this way: In-September, 1860, the Wyandotte town company, the then owner of the lots, conveyed them to Isaiah Walker, and this deed was duly recorded June 13, 1863. In June, 1869, a judgment was rendered against Isaiah Walker, which was-kept alive by executions issued from time to time. On July 6, 1880, the lots were sold under an execution on such judgment. One lot was sold to B. B. Hadley, and the other-three to plaintiff. Hadley subsequently conveyed by quitclaim the lot he bought to plaintiff. At the time of this-sheriff’s sale in 1880,- the-lots were vacant and unoccupied.
On the other hand, defendant claims title in this way : In 1857, Isaiah Walker owned one share in the town company of Wyandotte, calling for ten lots. Before the drawing of the-lots, he assigned, in writing on the back of the share certificate, all his right, title and interest in the fourth, fifth and1 sixth-class drawings in said share to William B. Overton. Thereafter, these lots were drawn in the classes so assigned toOverton, but by mistake the town company conveyed to-Walker. On the discovery of the mistake, Walker and his-wife executed a quitclaim deed to Overton. This deed was never recorded, and is probably lost. In January, 1880,. Overton conveyed to defendant.
The first question is, whether sufficient foundation was laid for secondary evidence of the contents of the deed from Walker to Overton. In reference to this the only testimony was that of Overton, as follows:
“Isaiah Walker made a quitclaim deed to me of these lots,, numbered 1, 2, 3, 4, in block 168, which deed was also exe*314 cuted by his wife, also subsequent to the deed to him from the Wyandotte city company. I took that deed with others to the register’s office, but it was lost before it was put on record, and I could never find it. Have not searched in the register’s office for it. I inquired of the register of deeds for it, and he could not find it.”
The register of deeds was not called as a witness, nor any person who had made search in that office. No sufficient foundation was laid. The deed was traced to the register’s office, and no one was placed on the stand who had made any search in that office. The statement of the witness that he had inquired of the register of deeds, and he could not find it, is simply hearsay testimony as to what the register told him. (The State v. Cook, ante, p. 82.) Counsel for defendant in error make a very different statement of the testimony in their brief, but we are governed by the record, and must folloy that. Obviously that showing was not sufficient. In 1 Greenleaf on Evidence, § 558, the rule is thus stated : “And so if it might or ought to have been deposited in a public ■office, or other particular place, that place must be searched. If the search was made by a third person, he must be called to testify respecting it.” (Guthrie v. Merrill, 4 Kas. 188; Johnson v. Matthews, 5 id. 123; Douglas v. Wolf, 6 id. 91.)
But it is argued by counsel, that although there might be ■error in this ruling, it is immaterial, because by the assignment on the certificate which was in evidence, the full title was transferred to OvertoD, and hence the lien of the judgment never attached to these lots. This seemed to be the ■opinion of the trial court, for it gave this instruction :
“That if the jury believe from the evidence that at the time of the rendition of the judgment against Isaiah Walker, said Walker had no actual interest in the property in controversy in this suit, and had no actual interest in said property at the time of the levy of the execution issued upon said judgment, that the purchaser at the sale made under such execution took nothing by his deed, and this notwithstanding the fact that by the record the title to said property was apparently in said Walker, and you will find for the defendant.”
It may be, however, if all the facts are presented by competent testimony, that the verdict and judgment should still be in favor of the defendant. If in fact a deed was made from Walker to Overton conveying these lots, as was attempted to be shown in the trial, and such deed was in fact deposited for record in the office of the register of deeds, then the neglect of the register is a matter which the plaintiff cannot take advantage of. (Poplin v. Mundell, 27 Kas. 158.) In that case we said:
“It seems to us that when the party holding the title presents his deed, duly acknowledged and certified, to the register of deeds for record, and demands that it be placed upon record, and the register thereupon accepts the same, and duly indorses it filed of the date it is so presented, such party has discharged his whole duty to the public, and his muniment of title cannot be shaken by any subsequent purchaser. If any subsequent purchaser be injured by the neglect or delay of the register as to his duties in the registration of such conveyance, such injured party has his action against that officer.”
In order, however, to bring this case within the limits of that rule, it must be satisfactorily shown that a deed was in fact executed conveying the lots in question; that it was taken to the register’s office and deposited with him for record, and that the omission to record and the loss of the instrument were solely the fault of the register-; and also that the defendant, after being aware of the defect in the record, was not guilty of laches in failing to give notice of his title, either by occupation of the lots, the record of a new deed, or proceedings in court. Every claimant of title owes a duty of notice to the public. Generally speaking, the record is the means of information; and the spirit of our laws is to encourage reliance upon the record. Where that fails and
This covers all the questions presented, or that w'e think are likely to arise in the further course of this litigation.
The judgment will be reversed, and the case remanded for a new trial.