O'Neal v. Tennessee Coal, Iron & Railroad

140 Ala. 378 | Ala. | 1903

DOWDELL, J.

The vital question in this case, and the determination of which, we think, will settle the controversy between the parties, is, whether or not the trial court erred in admitting in evidence against the objections of the plaintiffs below, who are the appellants here, the certified copy of the instrument claimed by the appellee to be a deed of conveyance of the land in question from Philyaw to Roebuck. Upon the trial, the plaintiffs having made out a prima facie case, the defendant sought to defeat their right to recover by showing a conveyance of the title out of Philyaw, under and through whom the plaintiffs claimed, and to this end, offered in evidence, and which the court allowed against plaintiff’s objection, the copy of the instrument claimed to be a deed or conveyance of the land from said Phil-yaw to Roebuck.' The instrument bore date of November 11, 1865, and was in form a deed, purporting in the body of it to convey the land in question. It was signed, his her “W. J. X Philyaw, (Seal), Elizabeth X Philyaw mark mark (Seal).” There was no witness or witnesses, nor any acknowledgment to its execution. Attached to the copy was a certificate of J. P. Stiles, Judge of Probate of Jefferson county, that the foregoing instrument is a correct copy of the record of the deed as shown by the record in his office, and furthermore, that the foregoing instrument was filed for record in the office of the Judge of Probate court of Jefferson county on the 16th day of December, 1865.

No question was raised as to the use of a certified copy instead of the original, the plaintiff’s objection being, that the certified copy showed on its face, that the original instrument was not a deed, and was wholly inoperative as such to pass the title out of the alleged grantors. The appellee’s contention was, and is, that the instrument was admissible in evidence as an ancient document without proof of its execution, and with the presumption, as such, of its due execution, and in support of this contention relies alone upon the case of White v. Hutchings, 40 Ala. 253, and authorities there cited. The admission in evidence of ancient documents without requiring preliminary proof of their execution, is nothing more than a rule of evidence, created to prevent a failure of justice and preserve already existing rights, which would otherwise be lost. The reason of the rule is rested upon the ground of the presumed death, after so great a lapse of time, of the attesting witnesses to the instrument, and by whom its execution would be required to be proved hut for the rule, to render it competent in evidence. It was never intended that the rule should operate to create a right that never existed and whereby the ends of justice would be thwarted instead of being preserved.

In White v. Hutchings, supra, there was an acknowledgment by the grantor of the execution of the deed, though imperfect both in form and. substance. It was insufficient in itself as an acknowledgment under the statute to authorize registration so as to make the deed self-proving, but if the deed was, nevertheless, sufficiently executed as a deed to operate a conveyance of the title, since the signature of the officer to the defective acknowledgment, would be treated and held as that of an attesting witness subscribing his name as such. “The acknowledgment and certificate though defective in form, will operate as an attestation by a single witness.”—3 Brick. Dig. 298, § 19; Merritt v. Phenix, 48 Ala. 87; Sharpe v. Orme, 61 Ala. 263; Rogers v. Adams, 66 Ala. 660.

The transcript of the deed in White v. Hutchings, was offered in evidence under an agreement between the parties to the effect, that the copy of the deed as set out in the transcript, might be regarded as an original paper of the same tenor and date. The deed was more than thirty years old, and it was there said: “Instruments more than thirty years old, unblemished by alterations, are said to. prove themselves, the subscribing witnesses being presumed to be dead; and this presumption, so far as this rule of evidence is concerned, is not affected by proof that the witnesses are living,” citing 1 G-reenleaffs Ev. § 21. This was conclusive of the question in that case, and as to what was said by Justice Judge under the second proposition discussed by him in the opinion, as to the admissibility of the transcript independent of the agreement between the parties, it was stated, that the other members of the court announced no conclusion. None of the cases cited by Justice Judge, and all of which were decisions by this court, support the proposition so broadly stated by him, as to the extent of the presumption to be indulegd in favor of an instrument or paper, that had been recorded for more than twenty years. In all of the cases to which our attention has been called, it appears that the instrument offered and admitted in evidence as an ancient document, whether in the shape of the original, or as a certified copy of the original, showed upon its face to be sufficiently executed to operate as a conveyance of the title, and proof of execution was all that was necessary to render it competent in evidence even as a recent document, and being ancient, the rule under consideration dispensed with the necessity of proving its execution.

In Meegan v. Boyle, 19 How. 149, which was an action of ejectment, in speaking of the rule as to the admissibility of ancient documents, the court said: “The rule embraces no instrument which is not valid on its face, and which does not contain every essential requirement of the law under which it was made.” In Reaume v. Chambers, 22 Mo. 53, the Supreme Court of that State says: “The principle that ancient deeds accompanying the possession, and produced from the appropriate custody, prove themselves, has no application to this case. At the date of the deed in question, the law prescribes a mode by which estates should be conveyed. If that law was observed, this court has held that married women might convey their estates by complying with its provisions. If the law then in force regulating conveyances has not been complied with, how can we presume that a deed has been regularly executed when we see from the very instrument produced, in whose a.id the presumption is sought, that the law, in almost every particular, has been violated? Can we presume that the law has been complied with when we see, from the very face of the deed, that it has not been? When an instrument itself tells us that the law has not been observed in its creation, how can we, from length of time or any other consideration, say that it has been? Can a presumption in favor of a deed arise when the deed itself tells us that such a presumption is false? The statute in force at the date of the deed required the wife to join in it with the husband, and acknowledge it before the proper officer, and to declare that she executed it voluntarily without compulsion or undue influence of her husband. Here the wife’s name alone appears to the deed, and it is not acknowledged at all.”—Citing Beall’s Lessee v. Lynn, 6 Har. & J. 351.

In order to convey the legal title to land, the statutory requirements were substantially the same at the date of the instrument here in question as now. At the date of the instrument, “under the Code, a conveyance of lands was not executed so as to pass the legal estate, unless the execution thereof was attested by one witness, when the grantor writes his own name, or if he is not able to sign his own name, and uses a mark, by two witnesses, or the execution acknowledged before and certified by an officer having authority to take and certify the acknowledgment or probate of conveyances.” 3 Brick Dig. 297, § 11; O’Neal v. Robinson, 45 Ala. 526; Harrison v. Simons, 55 Ala. 510; Goodlett v. Hansell, 56 Ala. 346; s. c. 66 Ala. 151; Lord v. Folmor, 57 Ala. 615; Bank of Ky. v. Jones, 59 Ala. 123; Wilson v. Glenn, 62 Ala. 28; Stubbs v. Kohn, 64 Ala. 186; Stewart v. Beard, 69 Ala. 470; Dugger v. Collins, Id. 324; Evans v. Richardson, 76 Ala. 329. Here the certified copy of the instrument offered in evidence showed on its face that there had been neither attestation nor acknowledgment. If the original had been produced in this condition, it would hardly be contended that it came up to the requirements of the law for the conveyance of legal estate in land. Does a copy possess in the eye of the law any greater dignity and virtue than the original? The difficulty, we think, with the appellees, lies in the application of the doctrine as to the presumptions accompanying ancient documents. As before stated, the admission of ancient documents in evidence when relevant, without proof of their execution, is but a rule.of evidence, based upon the presumed death of the attesting witnesses. It cannot apply to an instrument which on its very face contradicts any presumption of its having ever been executed. We think there is a distinction to be drawn as to the extent of presumptions to be indulged, between those cases where accompanying tlie possession of the property, title is relied on through, judicial proceedings, where it is shown that the record have been loosely kept, and cases of private transactions between the parties. In the former, after great lapse of time, presumptions will be indulged in favor of the regularity of the proceedings, even to the extent of supplying important' omissions, but in the latter the reason for such presumption does not exist.

Our conclusion is, that the court erred in admitting in evidence the copy of the paper claimed to be a deed from Philyaw to Roebuck, being on its face invalid as a conveyance of the legal estate.

Reversed and remanded.