McCleery v. Lewis

Emery, C. J. This was a real action. The plaintiff claimed and sought to prove title only under a deed of conveyance which she claimed was executed and delivered to her mother in 1855, and conveying a life estate to her mother with remainder to herself. The mother was deceased. The essential proposition of fact to be proved by the plaintiff was that such a deed had been in fact executed and delivered. She was not able to produce any witness that ever saw such a deed or ever heard such an one read. She did, however, produce an office copy of what purported to be the record of such a deed in the proper Registry of Deeds, and offered it as admissible evidence that an original deed corresponding to the record had been executed and delivered prior to the date of the record. We are constrained to hold that by the settled law of this State neither the copy of the record nor the record itself is admissible evidence to prove the existence of an original, the plaintiff being a grantee in the supposed deed. The statute, R. S., ch. 84, sec. 125, authorizing the use of records and copies of records of deeds as evidence of the existence, execution and delivery of originals, only applies to deeds prior to that in which the party is the grantee or heir of a grantee. It does not include the deed produced by the plaintiff. Elwell v. Cunningham, 74 Maine, 127; Webber v. Stratton, 89 Maine, 379. The plaintiff urges that the age of the record, an age of more than half a century, together with the fact that her mother occupied the land for a time after the date of the record, creates a presumption that there was in fact an original of the record duly executed and delivered. It is true that when a document, apparently an original deed and shown to be thirty years old or more, is produced, it may be received in evidence without -other proof of execution. But this presumption of due execution applies only to originals, not to copies. Further, the mere fact that the mother occupied the land, there being no evidence that her occupation was under any — 38 — claim of title, creates no legal presumption that her occupation was under any particular deed. If neither the copy nor the occupation creates any presumption, both together cannot. Zero plus zero is still zero. In Elwell v. Cunningham, 74 Maine, 127, the record was nearly seventy-five years old, yet the court held it was not evidence of the execution and delivery of an original. The plaintiff’s counsel cites several cases to the effect that an office copy of a deed is admissible in evidence upon proof that the original is destroyed, or lost, or is in the possession of the opposite party who will not produce it. In those cases there was evidence •aliunde that an original had been executed and delivered. In this case there is no such evidence. -This circumstance shows the inapplicability of the cases cited. As the law is today in this State, grantees in deeds, and their heirs, cannot depend upon the record of deeds direct to them. If unable to produce the original deed, they must produce evidence aliunde the record that there was in fact such a deed executed and delivered. The pro forma ruling admitting the copy in this case must be reversed. Exceptions sustained.