Shelton v. Armor

13 Ala. 647 | Ala. | 1848

CHILTON, J.'

The view which we take of this case renders it wholly unnecessary to institute an inquiry into the character of the defendant’s title to the lot sued for. Whether he had any title was a question of no importance until the plaintiff had made out such title as would enable him to sustain the action; for the familiar rule requires, that the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary.

Did the plaintiff show such title as would authorize a recovery ? All the conveyances which were offered and read to the jury, could avail him nothing, as these depended for their validity, as respected the transmission of title, upon the deed from William E. Kennedy to Ball, which had been excluded from the jury, and as he never had the actual possession of the lands, nor had any one from whom he claimed ever been so possessed, he was necessarily thrown upon documentary evidence of title. The question then turns upon the exclusion of Kennedy’s deed to Ball; for with that deed properly in evidence, we are not prepared to say that the plaintiff would not have made out such a prima facie case in connection with his other proof, as to have required the exhibition of a paramount title on the part of defendant. In respect to the first objection made to the admission of the deed, that it was not a sealed instrument. The statute requires the courts to carry out the intention gf the parties, by giving the instrument which imports on its face to be under seal, the same effect as though a scrawl had been added. Olay’s Dig. 158, § 41. So that the deed could not have been properly excluded on that ground.

The other ground of objection to its admissibility was well taken. The certificate does not comply with the requisitions of the statute, a substantial compliance with which is essential to its validity. This was the decision in Phipps v. McGehee, 5 Porter’s Rep. 413, which decision is approved in Brock v. Headen, supra, 370. See the authorities collected in Phil. Ev. G. & H’s Notes, 874. The certificate in this case merely recites that the grantor appeared and acknowledged the certificate to be his, but whether the deed was by him sealed or delivered, or when he signed it, is not stated, thus omitting every essential requisite of the statute. Dig. 152, <§> 7. The copy of the record in some cases is proper evidence, in connection with other proof, to establish the contents of a lost instrument, although such record may not have been made upon a valid certificate ; as, where it is shown to have been compared with the original, it may be admitted, not as a record, but as. a sworn copy of the original. Winn v. Patterson, 9 Peters’s Rep. 666. But the copy deed in the case before us was offered as a recorded instrument, aside from all other proof, and as such was clearly inadmissible. See Blight’s Heirs v. Banks, 6 Monroe’s Rep. 196 ; Barger v. Miller, 4 Wash. C. C. Rep. 280.

The deed from Kennedy to Ball out of the case, it is manifest Ball had no title to the lot in controversy, which would have enabled him to recover, and could transfer no greater title than he had. Having shown no documentary evidence of legal title, there could be no constructive possession, and as he never had actual possession of the lot sued for, he is left, so far as the evidence discloses, wholly without title. It is not shown that Ball, in possessing himself of one part of the lot embraced in his deed, intended it as a possession of the whole, but it is said he claimed the lot now sued for, the lines of which do not touch the part he had in actual possession. Under these circumstances, we are of the opinion that he failed to make out his case, and the instruction of the court below to the jury, was correct.

Judgment affirmed.

Dargan, J., not sitting.