153 Ky. 70 | Ky. Ct. App. | 1913
Reversing.
This appeal involves the sufficiency of a petition brought, under section 344 of the Civil Code, for a new ■trial on the ground of unavoidable casualty or misfortune, arising in this way: Johnson Chapman and his wife filed suit in the Pike Circuit Court against Will M. Smith, in which they sought to recover of him the value ■of certain timber, alleged to have been cut and removed by him from a tract of land which they claimed. The title to the land was put in issue. Chapman and wife relied upon a paper title, and traced it back to one Hammond Goosling, the senior patentee of the land. They also pleaded* and relied upon adverse possession. Smith had a paper title, but was unable to produce evidence of it, and he relied upon the claim of adverse possession. The case proceeded to trial and resulted in a judgment for the plaintiffs. After this judgment had become final, Smith discovered the deed which perfected his title to the land, and he thereupon filed this suit in which he seeks to have the former judgment vacated and a new trial granted him upon the following state of facts:
It appears that Hammond Goosling had twice conveyed this sarnie land. He first conveyed it to those under whom Smith claimed, and, at a later date, conveyed it to those under whom Chapman claims. On Au.gust 14, 1858, he conveyed it to one Benjamin Williamson, and by a series of mesne conveyances the title passed to and vested in one Alex. Varney and Jacob •Smith, father of appellant, Varney conveyed his interest to Jacob Smith, and Smith devised the entire tract to his son. At and before the date of the trial Smith was unable to connect the title to the land which his father devised to him to Hammond Goosling. His inability to do so is alleged to have grown out of the fact that the deed from Goosling to Williamson, made in 1858, was not properly indexed in this, in the index under the letter “Gt” the clerk failed to note the record of the deed from Goosling to Williamson, but did index it under the letter “W” as Williamson from Goosling. In his petition for -a new trial Smith alleged that since the discovery of the ■deed from Goosling to Williamson he is enabled to present a perfect paper title to said land superior to that of ■appellees, and insists that, upon this ground, a new trial should be awarded. In the circuit court a demrurer was interposed to the petition and sustained. An amend
It seems that the circuit court, in ruling as it did, proceeded upon the idea that the petition was defective in that it did not set out at length, or cause to be made a part of it, the record of the proceedings in the old suit, and also because the complainant failed to show due diligence to discover and present the evidence of the Williamson deed upon the former trial. Thus, are two questions raised for consideration here.
The petition, in appropriate language, sets out the .pendency of the former suit, the description of the land, the title to which was involved, the issue raised by the pleadings, the trial, verdict and judgment, his ownership of the land by devise from his father, the title by which his father held the land tracing same back to Hammond Goosling, the patentee; that, at and prior to the institution of the suit in which judgment was rendered against him, he made diligent search of the records in the county court clerk’s office in Pike County for title papers to cover the land in controversy, and had a reputable firm of attorneys to make like search, but that neither he nor his attorneys were able to find the deed from Goosling to Williamson; that by reason of this fact he was unable to present his defense to said suit; that, since said trial and judgment, he has found said deed; that his inability to find it was due to the fact that it was not properly indexed, and that this -fact cannot be imputed as negligence to him; that if he is now given a new trial and permitted to do so, he can show in himself a perfect paper title from the Commonwealth, superior to that presented by appellees; and he prayed that he be given an opportunity to do so:
Petitions, in cases of this character, are addressed to the conscience of the chancellor. They mnst state the facts with reference to the judgment sought to be affected with sufficient fullness and definiteness to enable him to determine whether or not there has been a miscarriage of justice, because of casualty or misfortune, which prevented the complaining party from producing his evidence or properly presenting his case. In order to meet such requirement, it may be, and frequently is, necessary to set out all of the pleadings, steps and proceedings leading up to the judgment complained of. But this
“ In a petition for a new trial the proceedings of the former suit must be set out and as a rule the record of that suit should be made a part of the new record, so that the court may determine upon the whole case whether a new trial should be granted.”
Thus it is seen that the purpose of requiring the proceeding in the former suit to be set out is for the court’s information, in order,, as stated, that he may determine whether or not a new trial should be granted. This position, in no wise, conflicts with the opinion of the-court in Weir v. Weir, 19 Rep., 2005 where the court said:
“The proceedings of the old case and the trial and evidence heard thereon should have been pleaded in this case in full or should have been made a part of the petition in some way by reference as exhibits, so as to neces-: sarily bring that old case and the proceedings had therein before the court in this case.”
But the court further said:
“It (referring to the petition) utterly fails to show: what were the issues on the trial wherein the judgment-was had or that either the appellee or Clifford Weir testified on that trial to any fact, or if they did testify that' their testimony was not what these two new witnesses will testify. It may be, so far as this petition shows, that appellant in the former trial admitted his liability to some extent and the jury was only called to fix the amount of recovery, or it may be that all this matter proposed to be shown by this new evidence was directly in issue in the other trial. The petition is silent as to all of these things and according to the rules of pleading all the facts necessary- to show a plaintiff entitled to affirmative relief must be shown in his pleading.”
The only remaining question is: Did appellant use due diligence in an effort to present his title paper in that suit? Section 513, Kentucky Statutes, which is practically the same as section 34, Chapter 34, Revised Statutes-, in force at the time the Williamson deed was lodged for record, makes it the duty of the clerk of the county
“It is the clerk’s duty to index the mortgage properly on the cross index. The fact that the mortgage in question was indexed and recorded in one of the individual mortgage books was not a compliance with the law. It was not incumbent upon appellee or his attorneys to examine each mortgage book or the index thereof for the purpose of discovering the mortgage in question. They had the right to rely on the cross index required by the statute to be kept.”
It seems, in that case, the clerk had, in addition to the cross index, an index in each mortgage book, and, had the complainant in that case looked into the index in the book in which the mortgage was recorded, he. could have discovered the evidence of that fact, but the court said that he was not required to look there, but had the right to rely upon the cross index which the clerk was required to keep. To the same effect is Bentley v. Letcher County, 143 Ky., 585. In Elliott v. Harris, 81 Ky., 470, the appellant upon the trial was unable to produce a certain deed. It turned out that this deed had been recorded, though she was unable to- find it, because the index was lost or destroyed. In awarding her a new trial, this court said:
*76 “No amount of diligence, in the eye of the law, could have discovered this deed, because the law does not require the appellant to do more than to search for the deed, in the usual way, by aid of the indexes and aid of the clerk, whose duty it is to index the deed books used by him in recording deeds. He was not bound to turn page by page to find a deed embraced by so cumbersome a record, and she had the right to be content after having made reasonable search and failed to find it. Public authority should provide for indexing the deed books whose indexes are not lost or destroyed, and until this be done, such books are not entitled to the legal force or validity of public records for the purposes of notice to all who may be affected by their contents.”
In Cox v. Prewitt, 16 Rep., 130, Cox relied upon a record of the survey kept in one of the books in the surveyor’s office, but upon search the book was not to be found, and for lack of this evidence, lost his case. Later, the. record .book containing the survey was found, and in holding’ that 'he was- 'entitled to a new trial, this court. said: ’
“It appears from the petition that the complainants made, search of the record of the surveyor’s office before the: trial for the record evidence they stood in need of, and which they discovered only after the trial. Not-finding'it where it belonged, it seems to us they had the right' to suppose that after making the survey the officer had failed tó record it.
We think that it wás not a lack of reasonable diligence on their' part to fail'-to hunt up the former surveyor, to' ascertain if he had, performed his duty. They had the right' to rest on- the presumption imputed to the officer, and' conclude that h¿ had turned over to his successor all the records of his office. They aver that they had no reason to beliéve the former surveyor had retained any of-the books belonging to the office, and had failed in his-duty to turn any of them over.”
An index which does not show' the name of the grantor in the conveyance to the grantee, and the nam e of the grantee from the grantor, in their proper place, that is, under the initial'letter of the grantor’s and grantee’s surname, is not such index as'the law contemplates or requires. Take the instant case for example. In the index, under the letter “G” should appear “Goosling to Williamson,” and, under the letter “W,”
Judgment reversed and cause remanded for further; proceedings consistent herewith.