49 Neb. 237 | Neb. | 1896
This action was instituted in the court below by John Thams against George H. Sharp and Andrew R. Graham to quiet title to the southwest quarter of section 20, township 29, range 2 west of the 6th P. M., and to cancel of record certain deeds covering the lands mentioned. The defendant Graham filed an answer and cross-petition, setting up therein title to the premises in himself and praying that the same may be quieted in him. Plaintiff replied by a general denial. There was a trial on the merits, which resulted in a decree for Graham, from which this appeal is taken, plaintiff claiming that the findings of the trial court are unsupported by the evidence.
A patent was issued for the- lands in dispute by the United States to one Peter Thams, of Clinton county,. Iowa, on April 1, 1872, which patent was duly recorded. On July 29, 1891, the said Peter Thams, his wife joining with him, conveyed the lands by warranty deed, duly acknowledged, to his brother, the plaintiff herein, which deed was filed for record on August 17, 1891. The defendant Graham also claims to be the owner of the lands through certain conveyances, the following being his chain of title: A warranty deed purporting to have been made by Peter Thams, to one John R. Armstrong, of Elk-
Peter Thams, plaintiff’s grantor and the person who acquired the title to the 160 acres from the United States, testified positively that he never signed or acknowledged the Armstrong deed and is not acquainted with the person certifying to the acknowledgment; that he first learned of its existence about two years prior to the trial; that he never conveyed these lands to any person other than John Thams, the plaintiff; that he paid the taxes on the real estate for several years between 1872 and 1890, and that he always spelled his surname “T-h-a-m-s,” and never with the letter “e” preceding the letter “s.” The above is the substance of the evidence upon which the plaintiff relies in making out his case, with the exception as to the way the grantor’s name is spelled in the deed to Armstrong, which will be presently stated. The record shows that John R. Armstrong died at his home in Elk-hart, Indiana, several years since. It was proven upon the trial by the testimony of his widow and other members of his family that his valuable papers at the time of his death were kept at his home in a bureau drawer; that subsequently on the removal of the family to another state the contents of the bureau, including the said papers of the deceased, were dumped upon the floor, where the papers were left, and that the controverted deed cannot now be found, although diligent search therefor has
It is argued that the certified transcript of the record of the deed was not competent evidence of the execution of the original until the existence and genuineness of the deed itself is established, and authorities are cited to the effect that to make a copy of a lost instrument admissible the existence and execution of the original as a genuine document must be proved. A sufficient answer to this argument is that after plaintiff himself had placed in .evidence the copy of the recorded deed defendant
Affirmed.