McLain v. Winchester

17 Mo. 49 | Mo. | 1852

Gamble, Judge,

delivered the opinion of the court.

1. When the transcript from 'the records of Smith county, in Tennessee, containing a copy of the will of John Trousdale, sr., and the probate thereof, was offered in evidence, it was objected to because it was not properly certified and authenticated. As this appears to be the only objection made at the trial, this alone will now be considered. The counsel, in argument, states the ground of the objection to be, that the clerk, who states himself to be clerk of the County Court of Smith county, after certifying that the transcript is a true copy of the records, concludes, “In testimony whereof, I have hereunto set my hand and affixed my seal of office, this 12th day of February, 1850.” The objection is, that he does not say that he affixes the seal of the court. Is the seal of office of the clerk of a court, the seal of the court? Or, to change the question, is the seal of a court the seal of office of the clerk ? I think so. I think no person can mistake the meaning of the clerk, when he mentions the seal which he affixes to the certificate, or doubt that it is the seal of the court.

2. The evidence offered of the contents of the deed of gift from John Trousdale, sr., was properly admitted. The defendant was the administrator of Jesse Smith, to whose wife the gift was made, and Jesse Smith, while alive, and his administrator, after his death, would be presumed to have' the custody of the instrument. Notice was given to produce it at the trial, or that evidence of its contents would be given. The statutory mode of compelling the production of papers, does not supersede the former common law mode of giving notice to produce and proving contents of an instrument in the power of the opposite party.

3. When the instructions given and refused are to be examined, it is first necessary to say that those which appear in the statement to have been given by the court, on its own motion, were not excepted to, and do not appear to have been made part of the record by bill of exceptions.

4. The two instructions given for the plaintiffs are entirely inapplicable to tbe case before tbe jury, and tbe statement of any other two propositions of law would bare given tbe jury as much aid in forming their verdict as these instructions. Tbe plaintiffs’ case, as made by tbe evidence, showed a life estate in tbe slaves in Nancy Smith, tbe wife of Jesse Smith, and a continuance of tbe same possession in Jesse Smith, after tbe death of bis wife, without any change whatever in tbe apparent character of tbe possession. The instructions about Smith holding the slaves in trust, or holding them as the property of John Trousdale, who had made his deed of gift, disposing of his entire interest in them, were so utterly irrevelant that they could not have misled the jury.

The counsel for the defendant objects, in his argument, to the refusal of the court to give the first and fifth instructions asked by the defendant, the others refused by the court being of but little importance in a case in which the title of the plaintiff was under a deed and a will. The first instruction contains a proposition of law entirely abstract, and which, in all probability, every man on the jury knew as well without the instruction, as he would have known it, if the instruction had been given. The proposition that possession of personal property is evidence of ownership,” if it had been announced to the jury, would not have given them much aid in deciding the case before them, while it certainly would not have surprised them as a great novelty. The court was under no obligation to deal in such abstractions.

5. The fifth instruction was properly refused, because it assumes that the slaves being in the possession of Jesse Smith, as the husband of Nancy Smith, to whom they were given for life, the possession of Jesse Smith, immediately on the death of his wife, Nancy, became adverse to the remainderman, without any act on the part of either, without any claim of title on the part of Smith. This is not the law. The judgment is, with the concurrence of the other Judges, affirmed.