Owen v. Thomas

Mr. Chief Justice Walker delivered the opinion of the Court: This was an action of covenant, on á deed containing covenants for title, for a quarter section of land. The breaches assigned are, that defendant and his wife neither had title to the land attempted to be conveyed; that at the time the deed was made the legal title was in James Robertson and others, whose title and right to possession was superior and paramount to that conveyed by defendant, and that plaintiff could not obtain possession of the land. Defendant filed a plea that, at the time the conveyance was made, the fee simple was not in any of the persons named in the declaration, but was in the defendant, and that he and his wife had well, truly and effectually conveyed the same to plaintiff. On this plea issue was joined, and a trial was had, resulting in a judgment in favor of plaintiff below, to reverse which, defendant below brings the case to this court, and assigns various errors. The whole controversy in this case arises upon the proof of the loss and contents of a deed alleged to have been executed by James Robertson and others to one Joseph Rafferty. It appears from the evidence that the son of the defendant below on two different occasions went to Carlinville and made search in the recorder’s office for the deed or its entry upon the record, but was unable to find it He also saw the father-in-law and brother-in-law of Rafferty, from whom he learned that Rafferty had gone south, and was at one time in the southern army, but whether he was alive they were not informed. Plaintiff in error filed an affidavit in which he states substantially the same facts in reference to the search for the deed as testified to by his son, and that there are no means known to him by which the deed or a certified copy of the record of the same can be adduced in evidence on the trial. On this preliminary evidence of the search, Chestnut was admitted as a witness and permitted to testify in reference to the contents of the deed. He stated that previous to the 21st of May, 1853, he, as agent of Robertson and the other grantors named in the deed, sold the premises to Rafferty; that subsequently he delivered a deed of that date for the land, purporting to convey the fee simple title, properly acknowledged; that Camp, Robertson, Boyd, Newbold and Taylor were trustees of the United States Bank of Pennsylvania; that Rafferty took possession of the land, and cut a considerable quantity of timber on the same. Does this evidence show sufficient search for the deed? It seems to be abundantly proved that it was not recorded in the proper office. But beyond this no other search was made. It is true, that the father-in-law and brother-in-law were seen, and inquiry was made of them as to where Rafferty might be found. But upon learning that he was in Texas, no further effort was made to communicate with him and to procure the deed, or obtain information as to where it could be found. It is true that owing to the insurrectionary condition of Texas a messenger could not have gone to him. Even if this shows a proper search, to authorize the introduction of oral evidence of the contents of the deed, its execution is not sufficiently proved. The witness gives the date of the instrument, but fails to state by whom it was signed as grantors, whether they signed it in person or by attorney, or whether it was in their handwriting, or even that he knew their signatures. This, at least, must be shown to establish the fact that it was a valid, operative instrument. And in this case that fact does not appear. Nor is his opinion that it purported to convey a fee simple title sufficient to dispense with other evidence of its validity. Plaintiff in error conveyed with a covenant of warranty, and by his plea, he took upon himself the burthen of proof, that he conveyed the fee simple title to defendant in error. By failing to produce, or prove the contents of the deed from the trustees of the bank to Rafferty, his grantor, he has failed to sustain his plea, and to show that he has answered his covenant. If defendant in error were compelled to prosecute or defend his title, we think the evidence in reference to this deed would be insufficient to establish title in him. Plaintiff in error has not kept and performed his covenant unless he has conveyed such a title as will hold the property. If the grantee had been in possession, until evicted by legal proceedings, or until he might yield to a paramount title, this action could not be maintained. There is no plea denying the averment in the declaration that defendant was unable to obtain possession by reason of the insufficiency of the title, and that he was not in possession. Nor does the evidence show any possession. The issue was made and tried whether plaintiff in error had conveyed the title to the land by his deed to defendant in error. No error is perceived in this record, and the judgment of the court below is affirmed. Judgment affirmed.