Thams v. Sharp

Non val, J. This action was instituted in the court below by John Thams against George H. Sharp and Andrew R. Graham to quiet title to the southwest quarter of section 20, township 29, range 2 west of the 6th P. M., and to cancel of record certain deeds covering the lands mentioned. The defendant Graham filed an answer and cross-petition, setting up therein title to the premises in himself and praying that the same may be quieted in him. Plaintiff replied by a general denial. There was a trial on the merits, which resulted in a decree for Graham, from which this appeal is taken, plaintiff claiming that the findings of the trial court are unsupported by the evidence. A patent was issued for the- lands in dispute by the United States to one Peter Thams, of Clinton county,. Iowa, on April 1, 1872, which patent was duly recorded. On July 29, 1891, the said Peter Thams, his wife joining with him, conveyed the lands by warranty deed, duly acknowledged, to his brother, the plaintiff herein, which deed was filed for record on August 17, 1891. The defendant Graham also claims to be the owner of the lands through certain conveyances, the following being his chain of title: A warranty deed purporting to have been made by Peter Thams, to one John R. Armstrong, of Elk239 hart, Indiana, acknowledged before I. N. Whittam, a notary public, on May 6, 1872, recorded May 15, 1872; warranty deed from tbe widow and beirs of John R. Armstrong, deceased, to George H. Sharp, dated September 21, 1891, recorded September 26, 1891; quitclaim deed from George H. Sharp and Winifred C., his. wife, to Andrew R. Graham, bearing date September 25, 1891, recorded May 17, 1892. It will be observed that each party claims title through Peter Thams as the common source. Plaintiff alleges and claims that the deed purporting to have been executed by Peter Thams to Armstrong was forged. The decision in this case turns upon the fact whether that deed is genuine or fictitious. Peter Thams, plaintiff’s grantor and the person who acquired the title to the 160 acres from the United States, testified positively that he never signed or acknowledged the Armstrong deed and is not acquainted with the person certifying to the acknowledgment; that he first learned of its existence about two years prior to the trial; that he never conveyed these lands to any person other than John Thams, the plaintiff; that he paid the taxes on the real estate for several years between 1872 and 1890, and that he always spelled his surname “T-h-a-m-s,” and never with the letter “e” preceding the letter “s.” The above is the substance of the evidence upon which the plaintiff relies in making out his case, with the exception as to the way the grantor’s name is spelled in the deed to Armstrong, which will be presently stated. The record shows that John R. Armstrong died at his home in Elk-hart, Indiana, several years since. It was proven upon the trial by the testimony of his widow and other members of his family that his valuable papers at the time of his death were kept at his home in a bureau drawer; that subsequently on the removal of the family to another state the contents of the bureau, including the said papers of the deceased, were dumped upon the floor, where the papers were left, and that the controverted deed cannot now be found, although diligent search therefor has [240] been made. Tbe deed was recorded in tbe deed records of Knox county, and plaintiff introduced in evidence a certified transcript of the record. This shows that in the body of the deed and in the certificate of acknowledg ment, as well as the signature of the grantor, his surname is spelled “T-h-a-m-e-s.” While the incorrect spelling of the grantor’s name thus indicated tends to corroborate the testimony of Peter Thams, it is not necessarily conclusive upon the question whether the deed was forged. (Rogers v. Manley, 49 N. W. Rep. [Minn.], 194.) It is probably true that the testimony adduced by the plaintiff would have warranted a finding and decree in his favor; but that alone will not authorize a reversal. It must also appear that the decree was not supported by sufficient evidence, which plaintiff insists that the record shows. As tending to establish that Peter Thams conveyed the lands to Armstrong, there is the record of such conveyance, and in addition thereto the testimony by deposition of I. N. Whittam, the notary public before whom the acknowledgment of the conveyance purports to have been taken, to the effect that Peter Thams, at and prior to the date of the deed, resided in Cedar Rapids, Iowa, the latter being engaged in the saloon business on Second street, not far distant from witness’ office; that Thams went before Whittam and acknowledged the deed in question, about twenty or twenty-one years prior to the date of his testifying, and that he has a personal recollection of taking the acknowledgment and making the deed. It was shown beyond dispute that Peter Thams, plaintiff’s grantor, resided in Cedar Rapids at the date of the disputed deed, and about that time Armstrong was also in the same city, he and Peter Thams both stopping at the same hotel, and the latter obtaining from Armstrong the right for the state of Wisconsin in a patent brick making machine. There was testimony given by disinterested witnesses tending to show that Peter Thams traded land for the phtent right, which he denies, claiming that he paid a money consideration. A. R. Oleson [241] testified that in December, 1892, he met Peter Thams at Aspen, Colorado, and conversed with him at the time the deposition of the latter was taken in this case, bnt which was not read on the trial, and that during the conversation Peter Thams stated that he did not know the said John R. Armstrong and never had any dealings whatever with him. Much stress is laid by plaintiff upon the fact that Peter Thams paid the taxes upon the land for several years following the recording of-the Armstrong deed. It is unusual for a grantor to continue paying taxes upon the property after he has parted with the title. The only explanation for his doing so in this case to be found in the record is the fact that Thams soon became dissatisfied with his bargain for the patent right, and within a month or two after he obtained it he went to Elkhart, Indiana, and saw Mr. Armstrong for the purpose of having the sale rescinded, bnt was unsuccessful in his attempt. The evidence to establish the execution of the deed was as complete as could have been expected under the circumstances. It was made more than twenty years before the trial, the original was lost or destroyed, the grantee dead, and there was no subscribing witness. A certificate of acknowledgment of a conveyance of land in proper form is evidence of its execution and acknowledgment, although not conclusive. The certificate can be impeached only by clear and convincing proof of its falsity. (Phillips v. Bishop, 35 Neb., 487; Barker v. Avery, 36 Neb., 599.) In this case the certificate is corroborated by the officer who made it. It is argued that the certified transcript of the record of the deed was not competent evidence of the execution of the original until the existence and genuineness of the deed itself is established, and authorities are cited to the effect that to make a copy of a lost instrument admissible the existence and execution of the original as a genuine document must be proved. A sufficient answer to this argument is that after plaintiff himself had placed in .evidence the copy of the recorded deed defendant [242] introduced sufficient evidence of the prior existence and genuineness of the original deed. With such proof, if not without it, under section 13, chapter 73, Compiled Statutes, the transcript of the record was competent evidence. That section authorizes the record of a deed duly recorded, or certified transcript of the same, to be read in evidence with like force and effect of the original deed whenever the original is shown to be lost, or not belonging to the party seeking to use the same, nor within his control. The evidence was sufficient to justify the finding of the court below, that the deed was executed by Peter Thams, the original patentee. The decree is Affirmed.