Ross v. Loomis

Rothrook, Oír. J. [434] i. pbactice : cause0: evi-ty dence: liow taken and made part of record. [433] I. Counsel for plaintiff make the-question that the cause is not in a condition for trial de novo [434] in this court, and by a motion filed in the case they ask that the evidence be stricken from the " . . abstract, because it is not identified by the proper J £ -*■ certificates. The trial was had partly upon depositions and other record' evidence, and partly upon the testimony of witnesses taken down in short-hand by the reporter of the court. Tim short-hand reporter noted the documentary evidence in his report, and at the close of the trial the judge indorsed a certificate upon the notes of the short-hand reporter, to the effect that it was the official report of the cause, “and that the same, together with the documentary evidence therein referred to, contains all the evidence offered, the objections and rulings made, and exceptions taken on the trial of said cause, and the same is made part of the record herein.” The short-hand reporter transcribed the notes of evidence, including the certificate of the judge, and to the whole he appended his own official certificate as to its correctness and completeness. The plaintiff cites us to the case of Godfrey v. McKean, 54 Iowa, 127, in support of the motion. That case holds that stenographic notes cannot be regarded as such a writing as is contemplated by the statute, chapter 145, Laws of 1878. But it does not hold that, where the court orders the evidence to be taken down in short-hand, and it is so done and properly certified, and it is afterwards transcribed, that this is not a compliance with the provision of the statute that the evidence shall be taken down in writing. In this case,' the rej>orter’s notes were ordered to be made part of the record. In the case cited, the plaintiff sought to require the judge to order the reporter to transcribe the notes, without making any provision for paying the reporter for such service, and it was held that no such requirement could be made. We do not think that it should be required that the translation or transcript should be made at the time of the trial, in order to comply with the provision of the statute that the evidence shall be taken down in writing. [435] 2 TITLE ÍO real estate: incompetent evidence to aííd lieirshfp1 .indeed. II. It was conceded by the parties upon the trial that the land in controversy, at one time, was the property of one Robert Y. MeOorkle, and that he was the common source of title. The plaintiff, to sustain his title-, introduced m evidence a quit-claim deed of ^ie laild> executed by Sarah E. MeOorkle and some few other persons, by which they' quit-claimed all of their interest in the laud to W. D. Kelsey. The deed was dated June 29, 1882, and recited that the grantors were residents of Rush county, Indiana, and that they were the widow and heirs of Robert G. MeOorkle. Some question-is-made as to whether the initial letter written in the name was the letter “G.” or “Y.” We attach no importance to this, because, as between these parties, the recitals above named are wholly immaterial. They are not competent evidence to prove either the death of MeOorkle or the heirship of the grantors. Whatever force they might have as between the parties to the instrument, or their privies, or persons holding under them, they are of no value in this controversy, because the defendant claims title under ail alleged conveyance by Robert Y. McCorkle. Costello v. Burke, 63 Iowa, 361. 3._: dee(1 an°diieirs°w provendeath and heirship: hearsay. It was necessary,- therefore, for the plaintiff to prove that MeOorkle, the owner of the land, was dead when the conveyanee in question was made, and that the grantors in the deed were his widow and heirs. To make this proof, W. D. Kelsey, the e-rantee in the deed, . , , . X- „ ’ was introduced as-a witness. It appears from Ins testimony that he resides in Guthrie county, in this state, and that he went-to Rushville, Indiana, after the execution of the deed, and was there informed that that was the former home of Robert Y. MeOorkle. We quote from his testimony, as presented in plaintiff’s abstract: ‘•That was the general reputation there in that part of the country. It'was the general repute that that was his home. I talked with his widow, with the citizens in the town of [436] Rusliville, with the lawyers who represented tlie estate of Robei’t Y. McCorkle, with the neighbors and friends and relatives of Robert McCorkle, and it was the general repute and reputation among the neighbors and relatives of Robert Y. McCorkle that he was dead at the time of the execution of this deed. It was the general repute and reputation among the relatives and family of Robert Y. McCorkle that he was dead when this deed was executed, and it was the general reputation and repute among the relatives and family of Robert Y. McCorkle that the parties who signed this deed were his children and heirs.” It is scarcely necessary to say that this was the merest hearsay, when applied to the issue between these parties. The death of McCorkle and the heirship of the grantors in the deed were not facts that could, as between these parties, be proved by common repute. It was not a question of pedigree, which could be' shown by the declarations of deceased relations. ' See Greenleaf on Evidence, Yol. 1, § 99, where it is said: “ Hearsay evidence is uniformly held incompetent to establish any specific fact, which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge.” Another objection to the testimony of this witness is, that it is not even shown' thereby that the McCorkle of whom he speaks was reputed to be the identical McCorkle who owned the land in controversy. It appears from other evidence in the case that the Robert Y. McCorkle who owned the land in controversy was living in 1863, and, if his widow was living in 1882, when this conveyance was made to Kelsey, it was not difficult to prove the facts of the death and heirship. This being all the proof offered upon these questions of fact, the court properly dismissed the plaintiff’s petition, without reference to the questions of notice and fraud, which we will hereafter consider. It is true, the plaintiff showed a regular line of conveyances from Kelsey down to himself; but there was no question of possession in the case, because [437] the land was wild and uncultivated, and the first actual pósession of it was that of the plaintiff, which commenced after he received the conveyance for it. 4 __. ac_ íaUuro?oUet: Seucl’consiacreeíordei'endanton cross-bill. III. It remains to be determined whether, under the evidence introduced by the defendant, the court should have quieted the title to the land in him. lie claimed title to the land through a direct conveyance from Robert Y. McOorkle and wife to one Hunt, and from Ilnnt and wife to one Hall, and from Hall, through some other grantors, down to himself. He showed, by what we regard, as undoubted evidence, that the 'deeds from McOorkle to Hunt, and from Hunt to Hall, were lost. They had not at any time been recorded or filed for record in Guthrie county. All of the other deeds had been recorded. Some of them had defective acknowledgments, but their execution and delivery were proved by the grantors and grantees. Some question is made as to whether the proof of the contents of the lost deeds was sufficient? We think it was. It is true, the witnesses did not undertake to give the exact language of the deeds. But, when taken in connection with the consideration paid, and circumstances of the transactions between the respective parties to the conveyances, there can be no'doubt that they were made as claimed and stated by the witnesses. We think that the court should have entered a decree quieting the title in defendant. And, in so holding, there are other facts in the case to which we deem it proper to briefly refer. It appears from the testimony of Kelsey that at the time he purchased the land it was worth $1,200, and that he had paid for the quit-claim made to him the sum of $104. He knew at the time that the defendant was claiming the land, under a conveyance which was of record, and that he had paid the taxes on the land from the date of his conveyance, which was in 1872, down to the time Kelsey made the purchase. And we think the evidence shows that all of the intermediate grantees down to and including the plaintiff’s grantor knew [438] that the defendant had paid the taxes as above stated, and that be claimed to own tbe laud. TI. N. Ross, tbe plaintiff’s grantor, is tbe father of tbe plaintiff. Plaintiff is a young man aged twenty-four years, and resides with bis father, and claims to have bought tbe land for $1,200 in cash, and that be is an innocent purchaser. The evidence is abundant that bis father knew of the defendant’s claim that be was the owner of tlie land. Now, wliile we are not prepared to bold, under the evidence, that plaintiff should be charged with notice of defendant’s rights, yet, as be lias failed to establish title to the land in himself, tbe above facts go far to reconcile us to tbe correctness of tbe bolding that tbe title should be quieted in the defendant. As matter of right, tbe plaintiff bas no cause to complain. There is no pursuasive reason why be should be granted wliat is, in effect, a new trial in this case. His counsel submitted bis case for a final decree without proving title, and they demanded a decree quieting title. Tbe defendant proved that be bad title, and that should be an end of tbe case. Tbe decree of the circuit court dismissing tbe plaintiff’s petition will be affirmed, and tbe decree dismissing defendant’s cross-bill will be reversed, and a decree quieting tbe title in tbe defendant will be entered in this court, or tbe cause will be, at tbe defendant’s option, remanded to tbe court below for that purpose. Affirmed on plaintiff’s appeal, and, on. defendant’s appeal, Reversed.