Trowbridge v. Addoms

23 Colo. 518 | Colo. | 1897

Mr. Justice Goddard

delivered the opinion of the court.

The errors assigned upon this record present for our consideration the correctness of the action of the court below in rejecting the record of the deed in question, and in granting defendant’s motion for nonsuit. The grounds upon which the objection to the introduction of the record were based were the want of a revenue stamp and the defective acknowledgment of the deed. In argument a further ground is relied on, to wit, the failure to lay the proper foundation for the introduction of the record, required by section 447, Mills’ Ann' Stats. The first ground of the objection, based upon the fact that there was no revenue stamp affixed to the deed, was not well taken. Assuming that the mere notation in the margin of the record was sufficient to show the want of such stamp, nevertheless the deed was not invalidated thereby, nor rendered inadmissible in evidence. To render the deed void as a conveyance under the terms of the U. S. Statute of 1866 relating to stamps upon written instruments, it was incumbent upon the party questioning its validity to show that the stamp had been omitted with intent to evade the provisions of the act. In the case of Green v. Holway, 101 Mass. 243, the court had under consideration the provisions of this act; and after noticing the prior acts upon the subject, and the changes and modifications thereof that had been made by the latter statute, held that it was not the intent or purpose of that act to render unstamped deeds and instruments which passed title absolutely void, and said:

“ The only reasonable construction of all these provisions, taken together, is, that an instrument not duly stamped at first is not by reason thereof absolutely void, but only voidable by proof that the stamp was omitted with intent to defraud the revenue.” Patterson v. Gile, 1 Colo. 200.

In the case of Carpenter v. Snelling, 97 Mass. 452, it was held that section 163, which enacted that no deed, instrumeat, etc., required by law to be stamped, should be recorded or admitted in evidence without being duly stamped, applied only to courts of the United States, and could not be construed to extend to or bind the state courts. To the same effect are Griffin v. Ranney, 35 Conn. 239; Craig v. Dimock, 47 Ill. 308; Bunker v. Green, 48 Ill. 243; U. S. Express Co. v. Haines, 48 Ill. 248.

In Patterson v. Gile, supra, it was held that section 163 was controlling upon the courts of the then territory. The court say:

“ As a territory, we derive our political existence and every political right and privilege that we enjoy from the general government, and therefore we cannot deny the power of that government to legislate upon this subject in this way, as did the supreme courts of Illinois and Massachusetts. * * * We recognize the power of the congress to enact this law, and, according to the one hundred and sixty-third section of the act, we will require every instrument to be stamped according to the provisions of the act.”

The reason assigned for the conclusion reached in that ■ case has ceased to exist, and we feel at liberty, under present conditions, to follow the' rule sanctioned by the weight of authority. Our conclusion is, that the absence of a revenue stamp from the deed did not, ipso facto, render it invalid, or inadmissible in evidence.

The other grounds of objection are more serious. Counsel concede that at the time the. deed purports to have been acknowledged there was no statute providing for the proof of the execution of a deed conveying land in this territory by acknowledgment taken‘outside of the United States. This certificate of acknowledgment is therefore a nullity, and affords no proof of the execution of the deed. And unless its execution was otherwise proved, the deed itself, if produced, would have been inadmissible in evidence; consequently the record thereof was inadmissible for the same reason, even if the foundation had been laid for its introduction, as required by section 447, Mills’ Ann. Stats.

For the foregoing reasons, the court properly sustained the objection to the introduction of the record of the deed in evidence. It further appeared that the representation in the written contract, with reference to the incumbrance upon the Denver property, was not true in two important particulars, to wit: The note, instead of being payable October 1, 1893, was payable January 4,1891, and was at the time the agreement was entered into more than two years overdue; and instead of drawing interest at the rate of 8 per cent per annum, as therein represented, drew interest at the rate of 10 per cent. Nor do we think that the subsequent endorsement of the note, extending the time of payment and reducing the interest to 8 per cent until that time (and 10 per cent thereafter), brought the incumbrance within the terms of the agreement.

We think, under all the circumstances disclosed by the record, the court below properly sustained the motion for nonsuit, and dismissed the action at plaintiff’s cost. Its judgment is therefore affirmed.

Affirmed.