22 Iowa 519 | Iowa | 1867
This was all of the evidence offered to lay the ground for the reception of the record copy of the deeds. The plaintiff did not show by his oath that the originals were lost, or that they did not belong to him and were not within his control. Upon this evidence the court admitted in evidence the record of the deeds. The defendant duly objected and excepted.
The rule requiring the production of the best evidence of which the fact to be established is susceptible, is well understood. It is needless to enlarge upon its great importance. No rule is more deeply radicated in the law of evidence, than the one which declares “ that nó evidence shall be received which is merely substitutionary in its nature, so long as original evidence can be had.” This rule is in full force except so far as it has been modified by statute. Taking sections 4001 and 4002 together, it will be seen that the distinction between primary and secondary evidence is still recognized. But the secondary evidence is made competent “whenever, by the party’s own oath, or otherwise, the original is shown to be lost, or not belonging to the party wishing to use the same, nor within his control.” Martin did not attempt to account for all of the deeds. Taking his testimony ■and that of Feenan together, the possession of the deeds alluded to by him, is traced to Furguson. But Furguson Afterward conveyed the land to the plaintiff. For aught that was shown on the trial, these deeds were delivered to plaintiff when he purchased, and may have been in his pocket or in his possession at the trial. Not being made to him, had he made oath (which perhaps may be by affidavit, and certainly by deposition if absent, or orally if he is present in comt) that they did not belong to him,
It is argued by the defendant, that a plaintiff in ejectment may be defeated by showing that he has no title, or that his title has expired, or is wholly gone. The rule is not disputed. The defendant thereupon claims that the proposed proof, if made, would show that the plaintiff’s title was wholly gone, since the redemption time had expired and no redemption had been made. If it be true that when the redemption time has expired, the owner ceases to have any interest in the property — ceases longer to have the legal title thereto even though no treasurer’s deed has been made to the tax purchaser, it would logically follow that the proposed testimony should have been received, and, if igpceived, would defeat the owner’s recovery in ej ectment. It is our opinion, under the statute, that the legal title does not pass out of the former owner until a deed is made by the treasurer to the tax purchaser. So far as the tax purchaser is concerned, it is clear that he does not become invested with the legal title until he receives the treasurer’s deed. This deed, it is declared, “ shall vest in the purchaser all the right, title, interest and estate of the former owner in and to the land, conveyed, and also all the right, title, etc., of the State and county thereto” (Bev., § 784) ; and that it is the tax deed that “ conveys the title.” See section 762. *
The action of the court in refusing to admit the tax certificates, etc. (this not being a proceeding to perfect title in the' defendant) is affirmed.
But for the error stated in the first branch of this opinion, the judgment of the District Court is reversed and the cause remanded.
Reversed.