Williams v. Wetherbee

The opinion of the Court was pronounced by Hutchinson, J. The first question presented is, whether the original deed, containing the covenant on which the present action is brought, was admissible in evidence, without other proof of its execution, than was furnished by its containing all the statute requisites of witnessing, acknowledgment and recording? The Court consider that it was admissible. The statute, p, 167, is express, that a deed thus executed “shall be valid to pass the estate, without any other act or ceremony in the law what [336] ever.” Deeds, with these requisites apparent upon them, have: always been adjudged admissible, without further proof, in all actions of ejectment: and there seems no good reason why the same decision should not prevail in the action of covenant broken. The result of the two actions is different; the plaintiff recovering in the former the land itself, and in the latter, damages for the loss of the land. But the question to be decided is the same in both actions, to wit, whether the grantor and covenantor owned the land when he executed the deed ? If he then owned the land, it passed by the deed, and the grantee, by force of the deed, can recover it in ejectment against any person whatever: if he did not then own the land, it did not pass by the deed, and the grantee must recover his damages in the action of covenant broken. The second question presented, is, whether it was competent for the plaintiff to prove the several intermediate conveyances from the first grantee, Howe, to his own grantor, by regularly certified copies from the town clerk’s records, which purport to. be copies of deeds for that purpose regularly executed ? These were copies of deeds not to be presumed to be in the possession of the plaintiff; and the object of this proof, again, is exactly what it would be if the action were ejectment to recover the land itself: the object is to make plain the plaintiff’s title to whatever land was in fact conveyed by Wetherbee to Howe in the first deed. The object of the plaintiff, in the action of ejectment, would be to show that he in fact owned the land, and was entitled to recover it. — His object in this action is to show that he owns whatever passed by Wetherbee’s deed to Howe, and, therefore, is the legal assignee of Howe, and is entitled to recover on the covenants running with the land, whatever Howe might have recovered for the breach of the same covenants, if he had never conveyed away his title to the premises. In the first of Phil. Ev. 310, citing 2 Starkie, 7, Blake vs. Braybrook, it is laid down as a general rule, “that a copy, authenticated by a person appointed for that purpose, is good evidence of the original, without any proof of its being an examined copy.” And by the case of Smartle vs. Williams, 1 Salk. 280, the the same rule is adhered to. The same is treated as law in all cases, in Gilbert’s Law of Evidence, p. 86. Butter, in his Nisi Prius, seems to doubt this, and Peake’s Evidence, p. 186, recites the statute of 10th of Anne, which he considers as putting upon the statute of Henry VIII. for enrolment of deeds, the construction, that the copies of lost deeds only are intended. But the practice in this state has always been, to admit the office copies, like these in question, in all questions where the party producing them had not the custody of the originals. This practice may have been encouraged by expressions in our statute regulating conveyances. — See Stat. p. 167, sec. 6. Provision is there made, that copies of deeds from the county clerk’s office, in certain cases, “shall be allowed as authentick as copies from the town clerk’s office.” So the 9 th section of the same act provides for [337] the executing of deeds under a power of attorney, and the recording of the same power, and adds---“A copy thereof,. from the records, shall be read in evidence, when the original cannot be produced, in the same manner as the copy of the deed made thereby is admitted in evidence.” These expressions do not necessarily imply that such copies may be read without proof that the originals are out of the parties’ power ; but the course has been, ever since the act passed, to admit regular copies of such deeds as do not belong to the party wishing to use them. And there is no inconvenience in this practice, for, in case of a doubt raised, whether the deed were genuine, every presumption would be against the party using the copy, unless 'the original were shown to be out of his power. Moreover, either party may take a subpoena duces tecum to a third person, having the custody of a deed in .the chain of title, that is, suspected to be a forgery. And, without some such necessity, it is better for the parties to avoid the expense of procuring the originals, by admitting the regular copies as prima facie evidence of the title. The decision admitting the copies is considered correct It appears that the defendant objected to the reading of the reeord of the recovery in the action of Clark against the plaintiff, Williams. This objection was overruled — and the Court discover no reason why it should not have been read. It was proper evidence to prove that fact as alleged, in the declaration. Indeed, this objection probably was intended as form, with a view to contend for the necessity of further evidence of the title upon which the recovery was had. But that question more fairly arises upon the charge of the court. It does not appear that the plaintiff introduced any testimony to show that Clark recovered that judgment upon the strength of an elder and better title than that which came from Wetherbee to the plaintiff nor that any notice was given by Williams to Wetherbee of Clark’s suit, that he might come in and defend the same; and the defendant requested the court to instruct the jury, that the plaintiff was not entitled to recover without proof to one or the other of these points. But the court instructed the jury, that the plaintiff was under no necessity to add any such proof to that of the record, in order to recover. For this decision the defendant is entitled to a new trial. The plaintiff alleges in his declaration, a recovery against him by Clark, by a title elder and independent. On a general demurrer to some other plea in bar, decided a year ago, objections were taken to the declaration, because this allegation did not amount to an averment of an elder and better title. The court, however, and with some difficulty raised by the authorities cited, overruled the objections. We should have had none of this difficulty, could we have considered the allegations too unimportant to require proof in case of a denial. That decision was publicly announced, and is now reported, and must have been sufficient notice to the plaintiff to come prepared [338] with this proof, if he recollected that the issues joined are what we now find them to be. The charge of the court, with regard to the measure of the damages, was nearly correct; at least, the defendant has no right to complain of it. The court instructed the jury, if they should find for the plaintiff, to give the plaintiff the value of the premises at the time of the final judgment in Clark’s suit, and the taxable costs of that suit, and interest on the whole. Instead of saying, the taxable, cost, the court should have said actual cost, for the plaintiff can have no remedy for that but in this suit. It will be observed, that We are deciding the case presented, and that only. Should a case arise, in which damages were sought for such improvements as are provided for in the act concerning betterments, a different rule for assessing the damages must be pursued, and one adapted to the particular circumstances of the case. The judgment of this Court is, that the judgment of the county court be reversed; and a new trial is granted. Prentiss, J. having been of counsel in the cause, did not sit on the trial.