Smith v. Ivey

PETEBS, J. This is a proceeding in the court of probate of Conecuh county to substitute the record of a deed, alleged to have been destroyed, under the provisions of the act of the general assembly of this State, entitled “an act to authorize the substitution of lost records of judgments and decrees of courts, and other records,” approved January 18, 1866. — (Pamph. Acts, 1865, 1866, p. 48, Act No. 18.) It is alleged in the notice of the application, that the deed was “received for record and recorded” on the 29th [50] day of September, 1864, by “John M. Henderson, judge.” The notice was otherwise sufficiently regular and avers all the facts necessary to give jurisdiction. There was a demurrer to the notice, and three principal causes of demurrer were assigned; but as they all raise the same question in different forms, only the first will be set out and discussed. It is in these words : “1. There was no lawful probate court in the county of Conecuh, Alabama, at the time said petition (notice) alleges that said deed was recorded.” This demurrer was sustained by the court below, and the application was dismissed with costs. From this judgment the petitioners in the court below, who are the appellants in this court, bring the case here by appeal. — (Pamph. Acts 1865, 1866, p. 48, Act No. 18, § 4.) A demurrer admits all the facts properly stated in the pleading objected to. — (1 Chitt. Pl. p. 661, 662, and Notes, 4th Amer. Ed. by Perkins.) Then, it is admitted in this case, that the deed in controversy “was probated and recorded in the office of the judge of probate of said county, (Conecuh,) by the then judge of said probate court, (of Conecuh county,) on the 29th day of September, A. H., 1864 and that since said record was so made, “all the records of the probate court of said county of Conecuh were destroyed by fire, on or about the 10th day of November, 1866, including the records of wills and deeds of said probate court.” The question then raised by the demurrer in this case is this : Did the general assembly, in the act above referred to, intend to include such a record as the one mentioned in the notice in this cause ? I think it did. The language of the act very clearly shows this. It is in these words: “Sec. 5. Be it further enacted, That in case of the loss or destruction of the records of decrees, deeds and other papers, required by the laws of this State to be recorded, in the office of the courts of probate, the judge of such court shall have the same authority, as is conferred in the preceding sections upon the circuit and chancery courts to establish and substitute such records of deeds, decrees and [51] other papers; and all papers and deeds which may have been recorded in his office according to law, the record of which has been lost or destroyed, may be recorded anew, upon which said record said judge of probate shall also enter all such indorsements or certificates as may have been attached to said papers or deeds by the former presiding officer; and said records, when so made, shall have the same force and effect as the original records, which were lost or destroyed. And for the services herein directed, the probate judge shall receive such compensation, and which shall be paid in such manner as the court of countv commissioners may allow and direct.” — Pamph. Acts 1865, 1866, p. 48, 49, § 5, Act No. 18.) The language of the act above quoted is quite broad enough to include the deed involved in this case, as in any other. It was an instrument required to be recorded in the office of the court of probate. It was so recorded and the record, such as it was, was destroyed. Such a proceeding was not necessarily a nullity. It has not been so declared by this court, or by any branch of the State government. — (Marlin v. Hewett, 44 Ala. 418.) This case is not like that of Chisholm, Comptroller, v. Coleman, 43 Ala. 204. In this latter case, the facts alleged in the petition, admitted the incompetency of the' officer claiming to be judge. Here, the allegation is the other way. The cases, then, are not the same in fact or in principle. Besides, the legislature evidently saw the necéssity of protecting and perpetuating the records of the rebel courts, so far as this could be done, to the same extent as- if they had been legal tribunals. The language used by them certainly goes to this extent, and we feel that it is necessary and proper, as a remedial statute, to give it that construction. Ubi lex specialis, et ratio ejus generalis, generaliter est accipienda. (2 Just. 43, 83; Dwarris, 735, 711; The Mayor, &c., of New York v. Lord, 18 Wend. 131; Thompson v. The State, 20 Ala. 54; United States v. Babbet, 1 Black. 61; Gelpcke v. Dubuque, 1 Wall. 220; also, Shiver's Ex'r v. Shiver, et al. The judgment of the court below is reversed and the [52] cause is remanded for further proceedings in that court in conformity with this opinion. The appellee will pay the costs of this appeal in this court and in the court below.