88 F. 686 | U.S. Circuit Court for the District of Western Missouri | 1898
This is an action of ejectment to recover possession of certain real estate situate in the county of Carroll, state of Missouri. On trial had to a jury, plaintiff recovered judgment, and the defendant has filed motion for a new trial, assigning as grounds therefor errors committed by the, court in the admission and rejection of certain title papers. It is admitted that the land in question was patented by the United States to Henry Richmond, April 20, 1819. The plaintiff claims title by mesne conveyances from said
Under the statute of Missouri in force at the time of the taking of the acknowledgment to this deed, the mayor of the city of Philadelphia was authorized to take acknowledgments of deeds to lands situate in the territory of Missouri (Laws Mo. 1818, p. 128, § 6). This statute, in so far as it authorized the taking of acknowledgments outside of the state by the mayor of any city, was repealed by the act of the legislature of Missouri approved February 21, 1825 (Laws Mo. 1825, p. 500, § 13). In the revision of that year of the law regulating conveyances (section 8, p. 218, Rev. Laws Mo. 1825), such acknowledgments, when taken outside of the state, could only he taken before some court of record in the state in which the deed should he executed. The vested rights of parties under grants to lands acquired prior to the repeal were preserved by the repealing act aforesaid.
The contention of defendant’s counsel is that, inasmuch as the deed in question was duly acknowledged under the statute of the territory of Missouri, it was entitled to be spread upon the record in the recorder’s office of the territory, and that the deed, not having been recorded within one year from its date, was not admissible in evidence without proof of the execution of the original instrument. The plaintiff, on the other hand, contends that the certified copy was and is admissible in evidence by virtue of sections 4858, 4834, and 4865, Rev. St. Mo. 1889.
Section 4858 reads as follows:
“Every instrument, oí writing, conveying or affecting real estate, and the certificate of the acknowledgment or proof thereof, made in pursuance of any law in force at the time of such acknowledgment or proof, hut afterwards repealed, shall he evidence to the same extent, and with like effect, as if such law remained in full force.”
Section 4864 is as follows:
“All records made by the recorder of the proper county one year before this law takas effect, by copying from any deed of conveyance, deed of trust, mortgage, will or copy of a will, or other instrument of writing, whereby any real estate may he affected in la.w or in equity, that has neither been proved nor acknowledged, or which has been proved or acknowledged, hut not according to the low in force at the time the same was recorded shall hereafter impart notice to all persons of the contents of such instruments; and hereafter when any such instrument shall have been so recorded for the period, of one year, the same shall thereafter impart notice to all persons of the contents of such instruments, and all subsequent purchasers and mortgagees shall be deemed to purchase with notice thereof.”
“Certified copies of such records as are contemplated in the next preceding section shall not be received in evidence until the execution of the original instrument or instruments from which such records were made shall have been duly proved according to law, except where such record shall have been made thirty years or more prior to the time of offering the same in evidence.”
Section 4858 covers the deed in question, as the certificate of ac knowledgment was made in pursuance of the law of the territory in force at the time of such acknowledgment, and which law was afterwards repealed. This being so, why does not a certified copy of the deed come clearly within the enabling provisions of sections 4864 and 4865? Attention to the language of section 4864 makes this clear. In the first place, it covers “all records made by the recorder of the proper county one year before this law takes effect.” This was the enactment of 1887 (Laws Mo. 1887, p. 183). This record was made by the recorder of the proper county more than one year prior to 1887. This is followed with two specified instances in which copies of such records may give notice to all subsequent purchasers and incumbrancers: First, where the recorded instrument has not been proved or acknowledged; and, second, where it has been proved or acknowledged, but not according to the law in force at the time the same was recorded. At the time this deed was admitted to record, in 1866, it had not been acknowledged according to the law then in force in the state of Missouri (Gen. St. Mo. 1865, c. 109, § 9). It is expressly provided by said section 4865 that certified copies of such records as are contemplated by said section 4864 shall be received in evidence “where such records shall have been made thirty years or more prior to the time of offering the same in evidence.” This record was made in 1866, and was offered in evidence in 1898, more than 39 years after it was made.
The court might be content to rest this question on the suggestion made by defendant’s counsel in support of his extraordinary position,— that it is unnecessary to inquire into the reason the legislature had in the particular phraseology referred to in section 4864, as the statute itself stands for a reason; but the court is unwilling to admit by its silence the contention of counsel that sections 4864 and 4865 admit of the construction placed on them, to wit, that if the deed in question had not been acknowledged at all, or if it had been acknowledged by some officer not authorized by the statute then in force to take acknowledgments of deeds to lands in Missouri, yet if such deed had been recorded in the recorder’s office of the proper county one year prior to 1887, and for thirty years prior to the time it was offered in evidence, a certified copy of such deed would be admissible in evidence without proof of its execution, while a deed properly acknowledged, and recorded one year prior to 1887, and more than thirty years prior to the time it is offered in evidence, would not be admissible without further proof of its execution. It is inconceivable that the legislature intended any such distinction in its remedial legislation. No sufficient reason can be assigned for such absurdity in legislation as that an unacknowledged deed, or one improperly acknowledged, if
What the legislature of Missouri was aiming to accomplish was ,to make these ancient records admissible in evidence without proof of the identity of the party executing them, because not only of the great inconvenience, but practical impossibility, in many instances, after the lapse of so many years, of making proof of the execution. In the instance under review, the deed was made 79 years ago, rendering proof of the identity of the party executing it out of the question. The legislature undoubtedly supposed that it. was providing for every conceivable case, in pari materia, by the provisions of sections 4864 and 4865. But, as already stated, it is sufficient to say that the copy of the deed in question comes expressly within the letter of the statute.
The defendant complains of the action of the court on the trial in excluding from evidence a certified copy of deed purporting to have been made by said Richmond to one John H. Martin, bearing date July 20, 1819, and acknowledged on the same day before one B. J. Prescott, at the city of Boston, state of Massachusetts, who signed
The supreme court of this state, in McDonald v. Schneider, 27 Mo. 410, speaking to a parallel question of a deed made by plaintiff’s ancestor, through whom plaintiff was claiming title, to one Bradley, said :
“The deed to Bradley was upward of 20 years old. There had been no possession under it for more than 20 years by Bradley or those claiming under him. It is a well-established principle that an outstanding title in a third person, set up as a bar to recover in an action of ejectment, must be such a one as the owner of that title himself could recover on if he were asserting it in an action. It must be a present, subsisting, and operative title. Now, it is obvious that the title of Bradley, set up in this action, was not such a one. Prima facie, he could not have maintained a suit upon it. Why, then, should a stranger be permitted to use it as a defense in an action of ejectment? There were no circumstances in evidence which relieved it from the objections with which it was encountered.”
This same principle is reaffirmed in Totten v. James, 55 Mo. 496, in which Napton, J., asserts that such a deed was properly excluded as an outstanding title, because it was barred as to the plaintiff by the statute of limitations. This doctrine is maintained by the supreme court of the United States in Greenleaf v. Birth, 6 Pet. 312. The presumption arises in respect of such claimed title, which has not been asserted in any form for so long a period that it has been extinguished. Counsel in argument seem to lose sight of the fact that it is an outstanding title that defeats the action, and not the mere fact that there is an outstanding deed. It is a title outstanding in a third party, which, prima facie, can be asserted in favor of the party holding it, and not one that is dead under the statute of limitations, or presumptively has been abandoned or extinguished.
It is next assigned for error that the court erred in excluding from evidence two papers offered by the defendant for the same purpose,—
It is also complained that the court erred in excluding from the jury a paper purporting to have been a lease covering this land, made by one Hayden, in 1868, to William F. Plaster, the ancestor of the defendant, Plaster. No reason was assigned to the court at the time of this offer which, under any conceivable aspect of the case, would have warranted the court in permitting it to go to the jury. It certainly was not offered as an outstanding title; nor was there any offer to show that William F. Plaster entered into possession of the land under said lease as color of title, for said lease was so short lived by its terms as to create no color of title; and there is no pretense that said Hayden had any color of title to said land at the time of the execution of the lease. Afterwards, in August, 1868, said Hayden obtained a tax deed to said land, which was admitted in evidence, on the defendant’s insistence, as color of title. No possible injury could have been done to the defendant by the exclusion of said contract or lease, for the reason that under the charge of the court to the jury, and by their verdict, they necessarily found as a matter of fact that in October, 1872, when the plaintiff obtained her deed to the property in question, neither the defendant nor William F. Plaster, under whom he claims, was in adverse possession of the property, and that the statute of limitations, by reason of such adverse occupancy, had not begun to run prior to October, 1872; and therefore the alleged lease, even had it been admitted in evidence, could have cut no possible figure in the case.