Porter v. Wells

The opinion of the court was delivered by Valentine, J.: The defendants in error commenced this action in the court below to recover from the plaintiffs in error the northeast quarter of section No. 32, in Township No. 14, of Range No. 22, in Johnson county. The action was tried by the court, a jury being waived, and, the court made special findings of fact, and rendered a judgment on such findings in favor of the plaintiffs below and against the defendants for the recovery of said property, and costs. The defendants complain of such judgment, and seek in this court to have it reversed. [453] 1. Evidence— S siietcuted brought. I. There are several assignments of error, and some of them are well founded. The first error complained of is, that th'e court allowed the plaintiff helow to introduce in evidence at the trial, a deed to themselves for a portion of the land in controversy, which deeci was executed after the suit had been commenced. This of course was error. 2 Greenl. Ev., § 304; Adams on Ej., (4th Ed.) 37, 43, 318;) and a material error, for said deed was the only evidence the plaintiffs had to prove title to a portion of the land. The petition of the plaintiffs alleged that the plaintiffs were, at the time the petition was filed, the owners of the land and entitled to the possession thereof, and not that they expected at some future time to become the owners. Upon the allegations of said petition the defendants joined issue; and it devolved upon the plaintiffs to prove the allegations of their petition. A deed executed after the petition was filed was no evidence at all that the plaintiffs owned the land when the petition was filed. “ The first rule governing in the production of evidence is, that the evidence offered must correspond with the allegations, and be confined to the point in issue 1 Greenl. Ev., § 51.) This rule was violated by the introduction of said deed. It did not tend to prove any issue made by the pleadings. If the plaintiffs desired the benefit of any rights that may have accrued to them subsequently to the filing of their petition, they should have filed a supplemental petition under section 144 of the code, (Gen. Stat., p. 655,) setting up such rights; then the defendants could have been prepared to meet the new issues. [454] 2._when uarol evidence inadmissabie. II. The next error complained of is, that the court permitted a •witness, Margaret Wells, to testify “that she and her family moved from said land,” meaning certain land in Missouri, “ because one hundred and . . „ . , , , . _ , , twenty acres ox said land in Jackson county, Missouri, had been sold to pay the debts of Mr. Poe; that the purchasers of said land had told her they wanted the land.” This also was error. It was an attempt to prove by parol evidence what could be proved by record evidence only. John Poe, under, whom the defendants below claim to hold the land in controversy, traded certain land in Missouri to Geo. W. Wells, under whom the plaintiffs below claim, for the land in controversy. The plaintiffs claim that at the time of the exchange of said lands Poe owed certain debts, which were a lien on said lands in Missouri, and that the same was sold to satisfy said debts, and that in consequence thereof the plaintiffs were evicted, and had to remove therefrom. The evidence of Margaret Wells was introduced to prove these facts; and it was certainly incompetent. If the land was sold to pay Poe’s debts, it must have been sold, by some kind of judicial proceedings, and the record of such proceedings would be the best evidence. 3. siiGi'aiff’B deed, “Sn stSe* valid sale. A sheriff’s deed was also introdpced by the plaintiffs to prove these same facts. That is, to .prove that the said land in Missouri was sold to pay Poe’s debts, and the conséquent eviction. The deed may have been sufficient to prove the conveyance, but it could not pr0ve that the sheriff had any right to convey. It could not prove that any judgment had been rendered against Poe, nor that Poe owed any debts, nor that these debts were a lien upon the land at the time Poe traded the same to Wells. Alone, it could not be any evidence [455] at all; and there was no foundation of any kind laid for its introduction. It is a general rule of law that a sheriff’s deed cannot he given in evidence, without producing the judgment and the execution under which the sale was made, these documents being necessary to show that the sheriff had authority to ¿ell; (1 Ohio, 278; 1 Blackf., 210, 213; 1 Peters, C. C. R., 64; 2 Johns., 280; 12 id., 213; 20 id., 338; 4 Wheaton, 77; 7 Cowen, 90; 1 Yeates, 21; 2 id., 86; 1 Halst., 589; 2 Ind., 465, 467; 4 Duer, 344; 8 Iredell, 81; 1 Dutch., 634, 662; 4 Cal., 291; 12 Wend., 74; 16 id., 562;) and this rule applies to this case. We have no statute in this State making a sheriff’s deed executed in another State any evidence of the existence or validity of the execution, or the judgment upon which said deed purports to be founded; and what the law of Missouri is upon this subject wa¿ not shown to the court below. Neither was it shown in what way Poe’s debts became a lien upon said land; and we have no right, in the absence of evidence, to presume that any debt is a lien on any real estate. Neither debts nor judgments were liens upon real estate at common law; and whether they are liens under the laws of Missouri has not been shown. Our courts will not take judicial notice of the laws of Missouri, nor -of any other State except our own; and when it becomes necessary that our courts should know the laws of a sister State,«such laws must be proved by the introduction of evidence. (1 Greenl. Ev., §489; Gen. Stat., 700, §370.) The court below also committed two or three errors in its findings of fact, sufficient of themselves to require a reversal of the judgment; but as these errors are not likely to occur again, we will pass them without further consideration. [456] The judgment of the court below is reversed, and the cause remanded for further proceedings. All the Justices concurring.