Totten v. James

Napton, Judge, delivered the opinion of the court. This was an ejectment by plaintiff to recovera tract of land in the Military Bounty Land District. ■ The plaintiff’s title was based on a deed from one Whitehead to her ancestor, dated June 3, 1819, and recorded in Howard Co., Mo., Nov. 8, 1819. The defendant offered an outstanding title in one Gibson, depending on a deed made by plaintiff’s ancestor, dated Jan’y 17, 1820, and recorded March 6,1872. The only questions in the case are presented by the admission of the certified copy of the first deed, and the rejection of the certified copy of the second. The deed from Whitehead to Snell, plaintiff’s ancestor, is clearly admissible under the 35th and 36th sections of the law concerning Evidence (Wagn. Stat., 595), since the legislative interpretation of these sections by the Act of March 22,1873 (Sess. Acts of 1873, p. 44), and if there was any doubt about the propriety of its being received in evidence under the statutes as they were at the trial, it would be useless to send the case back, as it is certainly admissible now. This is only a question of costs. The deed to Gibson was properly excluded. There was no proof of the loss or destruction of the deed (Barton vs. Murrain, 27 Mo., 240). Besides, it was offered as an outstand [497] ing title, and was barred as to the plaintiff by the Statute of 'Limitations. (McDonald vs. Schneider, 27 Mo., 405.) The judgment is affirmed, but the costs of the appeal adjudged against plaintiff below. Judges Adams and Wagner absent.