Whitman v. Giesing

WOODSON, J. This suit was instituted in the circuit court of Pemiscot county by the plaintiffs against the defendants, under section 650, Revised Statutes 1899', to quiet title to section thirty-one, township twenty north, of range twelve east, situate in said county. The petition was in conventional form, and the answer contained, first, a general denial, and, second, a similar claim of title in themselves, and prayed that the title he ascertained and determined in their favor, as provided for by said statute. At the request of counsel for defendants, the trial court made the following special finding of facts, and gave the following conclusions of law, viz. (formal parts omitted): “The court finds from the evidence in this case that the land in question, to-wit, all of section 31, in township 20, in range 12 east, in Pemiscot county,. Missouri, was conveyed in 1850', to the State of Missouri, by an act of the Congress of the United States; that the same is swamp and overflowed lands as designated by said act of Congress; that the State of Missouri conveyed the same to Pemiscot county, Missouri; that on the 15th day of December, 1858, the said Pemiscot county, by its certificate of purchase, sold and conveyed to one Theodore P. Whitman said land and that the said Theodore P. Whitman paid said Pemiscot — 606 — county for said land the sum of $773 and issued, and delivered to the said Theodore P. Whitman a certificate of purchase for said land; that said section contains 718 acres. The court further finds that on the-day of August, 1874, the said Theodore P. Whitman departed this life and left surviving him as his only heirs at law his children, plaintiffs T. P. Whitman, A. T. Whitman, George Whitman, Maberry Whitman, Kate McClendan, Rachel Robertson, Mollie Sutton and Fannie Stone, and as his grandchildren, Annie Bass and T. P. Randolph, daughter and son of his daughter Rebecca, deceased. “The court further finds from the evidence in this case that said land was on the 4th day of June, 1882, sold for taxes and that Sam Carleton became the purchaser at said tax sale and that sáid judgment on its face recites that the judgment was rendered against said real estate, but does not show that any person was the defendant in said tax suit. The court further finds* from the evidence in this case that this suit was filed on the 6th day of July, 1904, and on the 15th day of July, 1904, process was duly served on the defendant; that thereafter, to-wit, on the 10th day of June, 1905, the defendant procured from said Pemiscot county a patent purporting to convey to defendants said land; that at the time said patent was issued and delivered to the defendants they had notice and knowledge of the fact that said land had been previously sold to. said Theodore P. Whitman, deceased, by said Pemiscot county, as aforesaid, and that said Theodore P. Whitman had paid said county for said land the sum of $773. “The court further finds that there was passed by the Forty-first General Assembly of the State of Missouri, the following law, approved March 28th, 1901, to wit: ‘ Section 1. A copy of an entry or entries from the abstracts known as “ Carleton’s Abstracts” relating to or affecting the titles to real estate in Pemiscot — 607 — county, verified by the affidavit of tbe person or persons in Whose lawful custody said abstract may be, that the same is a true and correct copy of the entry or entries, shall be received as prima-facie evidence of the matter and entries therein contained in all courts and places within this State.’ ‘ ‘ The court further finds from the evidence in this case that notice of the intention to apply to the Legislature of the State of Missouri to have said law passed had been published in Pemiscot county, Missouri, at least thirty days prior to the introduction into the General Assembly of this state such bill and that said notice stated the substance of the said contemplated law and that the evidence of such notice having been published was exhibited in the General Assembly before such act was passed and that said notice is recited in said act according to its tenor; and that said notice was published in the manner required by law and the time required by law, to-wit: That said notice of said intention to apply to the Legislature of the State of Missouri to have said law passed, by said Legislature was published’ in the ‘Twice-a-Week Democrat,’ a newspaper published in said Pemiscot county, where the matter and things to be effected were situate, and that said notice was inserted in four separate publications of such newspaper and that the first insertion thereof was at least thirty days prior to the introduction of said contemplated bill. “The court further finds from the evidence that on the 2nd day of December, 1882, the courthouse of Pemiscot county, Missouri, was destroyed by fire and all the deed records and other records of the recorder’s office were in such fire. “The court further finds from the evidence that said notice was signed by ten householders of Pemiscot county and that proof of the publication of said notice was made by the affidavits of the publishers of said — 608 — newspaper and to the said affidavit was attached a. copy of said notice. “CONCLUSIONS OF LAW. “Upon these facts the court finds that the law is for the plaintiffs and that the plaintiffs are the owners in fee and that the defendants have no right, title or interest in and to said land, and that plaintiffs T. P. Whitman, A. T. Whitman, George W7hitman, Ma-berry Whitman, Kate McClenden, Rachel Robertson, Fannie Stone and Mollie Sutton are each entitled to an undivided one-ninth interest in and to said land in fee, and that plaintiffs T. P. Randolph and Annie Bass are each entitled to an undivided one-eighteenth interest in fee in and to said land, and that defendants have no right, title or interest in and to said land.” The court then rendered judgment accordingly for plaintiffs. Practically all the findings of fact are conceded to be true, or rather not disputed, except counsel for defendants insist that there was no legal evidence introduced tending to show that Theodore P. Whitman, the ancestor of plaintiffs and through whom they claim title by inheritance, .ever owned the land in controversy. 'The only evidence offered by plaintiffs tending to show Pemiscot county, which was the common source of title, ever conveyed the title, to the land in controversy to said Whitman was a certified copy of an alleged entry in Carleton’s Abstracts, which counsel for plaintiffs insist was admissible in evidence under the authority of an act approved March 28, 1901, referred to by the court in the special findings of fact. Counsel for plaintiffs offered a certified copy of said entry, which reads as follows: “Pemiscot County to Theodore P. Whitman, certificate of entry No. 1153, dated December 15th, 1858, Filed in Register’s Booh No. 1, page 40'. Consideration $773. — 609 — “Above certificate of entry conveys all of section 31, township twenty, range 12 east. Certified as follows: (Certificate of Charles W. Shields read). Signed and sworn to by Shields July 25th, 1905. John W. Green, Clerk of the Circuit Court. ’ ’ That offer was objected to by counsel for defendants for the reason that the entry offered in evidence is hearsay, and for the reason, second, that no authority of law has been shown making the entry whether certified or not evidence of land titles in any court in this state; third, because the paper offered and read by counsel as alleged evidence in this case is a private writing not made by any officer of any court in this state; and it is made and preserved merely by such private party for his own personal use and benefit, and because as yet no foundation of any kind whatever has been laid for offering the alleged abstract. Those objections were overruled, and the entry was admitted in evidence, to which ruling defendants duly excepted. The defendants, in support of their claim of ownership to this land, offered a patent from Pemiscot county to the defendants Benjamin and Caroline Gie-sing, dated June 19, 1905'. This patent is regular and conforms to the statute and recites the full payment of seven hundred and eighty dollars to Pemiscot county, Missouri. The money was paid to the treasurer of that county. Por the purpose of disproving the correctness of the alleged “certified copy” of Oarleton’s Abstracts, offered by the plaintiffs, but limiting the probative effect of the offering to that purpose, the defendants offered in evidence the original page in Carleton’s Abstract relating to section 31, township 20 north, of range 12 east. And that this court may have before it the actual physical arrangement of or original page of the abstract with every word, line, letter, mark, figure and — 610 — character that is found upon it, we herein below set out a copy of that page with everything on it that is on the original. Morever, we hereinbelow set out every word of the testimony of Charles W. Shields, who was at the time of this trial the legal custodian of Carleton’s Abstracts. His testimony is a “word picture” of the original page in Carleton’s Abstracts relating to this section. His testimony in full is as follows: “My name is Charles W. Shields. I live in Car-uthersville, Missouri. I am an abstracter. I am the lawful and legal custodian of what is known as Carle-ton’s Abstracts. The abstract and copy which I furnished plaintiffs and verified on the 25th day of July, 1905, was made up from Carleton’s Abstracts. ‘ ‘ Q. State if the book in my hand1 is the original Carleton’s Abstract? A. Yes, sir. Q. State if you know in whose handwriting the written matter that appears upon this book at the page open, in whose handwriting the matter is? A. From my best knowledge and belief I think that is Carleton’s handwriting. Q. You think it is Carleton’s handwriting? A. Yes, sir. Q. State if this Carleton’s Abstract is ruled off in columns? A. Yes, sir. Q. State what appears written in the first column; commencing on the left hand side of the page? A. ‘Grantors.’ Q. What is written in the next column immediately on the right? A. ‘Grantee.’ Q. In the next column? A. ‘Quantity,’ acres and hundredths. Q. In the next column? A. ‘Parts of Section.’ 'Qi. The next? A. ‘Consideration,’ dollars and cents. Q. The next? A. ‘Instrument Executed.’ „ Q. The next column? A. ‘Date of Instrument.’ Q. The next? A. ‘Date of Filing.’ Q. Next? A. ‘Dower Relinquished?’ Q. The next? A. ‘Book.’ Q. Next? A. ‘Page.’ Q. The next column? A. ‘Remarks.’ Q. Those are the various columns and several headings as it appears on the original Carleton’s Abstract? A. Yes, sir. Q. State under the head of ‘Grantor’ what is the first entry? A. — 611 — ‘Pemiscot County.’ Q. Under ‘Grantee?’ A. ‘Theodore P. Whitman. ’ Q. Under the ‘ Quantity ’ columns ? A. ‘618 and 98-100'th acres.’ Q' Under the column, ‘Parts of Section?.’ A. ‘All.’ Q. Under the column ‘Consideration?’ A. ‘$773.73.’ Q'. Under the column headed‘Instrument Executed?’ A. Nothing. Q1. It is blank? A. Yes, sir. Q. Under the column headed ‘Date of Instrument?’ A. That is blank. Q. Under the column headed ‘Date of Filing?’ A. That is blank. Q. Under the column headed ‘Book?’ A. That is blank. Q. Under the column headed!.‘Page?’ A. That is blank. Q. Under the column headed ‘ Remarks?’ A. Blank. “Cross-Examined by Mr. Brewer. “Q. Examine the same page in the abstract shown you by Mr. Oliver, and state what is the first line written on that page, commencing at the top of the first line? A. Carleton’s Abstract. Q. What is underneath that, the next line? A. Section 31, township 20, north of range 12 east. Q. What is in the first column on the left hand margin? A. 1143. A. Tell the court what that is? A. That is . . . Objected! to by counsel for defendants, because book speaks for itself. It is 1143 (no ruling). Q. Is that dollars and cents or what is it? Objection overruled. Exception noted. A. Well, after handling the books I have discovered that refers to the entry number. Q: That means the number of the entry that tract of land was ? A. Yes, sir. Q. You can also discover that from an examination of what is known as the index book in that office? A. Yes, sir; also from re-filed instruments on record here. Q. So those entries referred to and the matters to which your attention has been called by counsel for defendants is in relation to section 31, 20,12 east? A.. Yes, sir. Q. Then the method there is to put on each page and only one page the section, township and range, is it? A. Yes, sir; except where it is a Spanish grant cuts into a section, and they double up there. — 612 — Q. There is no reference to a Spanish grant there ? A, No, sir. “Mr. Oliver: ‘We now desire to offer this page of Carleton’s Abstract which relates to section 31, township 20 north, of range 12 east, as testified to and identified by the witness Shields. For the purpose only of contradicting the certified! copy of abstract heretofore offered in evidence on part of plaintiffs, and limiting the probative effect of this entry for that purpose only. ’ “Counsel for Plaintiff: ‘We object to its introduction that way. ’ “Mr. Oliver: ‘This entire page so you ■ (the Court) can see it.’ “ (The Court inspects the page — no ruling.) ” Which said page of Carleton’s Abstract is in Words and figures as follows: — 613 — — 614 — In due time defendants filed their motion for a new trial, which was as follows (formal parts omitted): „ “1. That the judgment of the court is against the law. “2. That the judgment of the court is against the evidence. “3. That the judgment of the court is against the law under the evidence. “4. That the court erred in refusing to admit competent, material and relevant testimony offered by the defendant upon the trial of this cause against the exceptions of the defendants at the time. “5. That the court erred in admitting incompetent, immaterial and irrelevant testimony offered by the plaintiffs upon the trial of this cause against the objections and exceptions of the defendants at the time. “6. That the court erred in its special finding of facts herein, said findings not being borne out either by the weight of evidence or by any evidence offered upon the trial of this cause. “7. That the court erred in its conclusions of law, said conclusions of law not being borne out by the facts proven upon the trial and not being the law of the case. "8. That under the law and the evidence the finding and judgment of the court ought to have been for the. defendants instead of against them. ‘ ‘ 9. That the court erred in permitting the introduction of evidence, on the part of plaintiffs, over the objections of the defendants, and subject to such objections, and failing to make any ruling on the same at any time.” I. The only evidence offered by respondents tending to show that Pemiscot county, the common source of title, ever conveyed the land in question — 615 — to Theodore P. Whitman, the ancestor of plaintiffs and through whom they claim title by inheritance, was the certified copy of the entry alleged to have been copied from Carleton’s Abstracts of titles to real'estate situate in that county. Counsel for appellants contend: first, that said copy was inadmissible; and, second, that if admissible, then it was completely disproved and overthrown by the original abstract itself, which was introduced in evidence. As regards the first contention, the exact question was presented to this court in the case of Nall v. Conover, 223 Mo. 477, wherein it was held, that the Register’s boohs referred to in Carleton’s Abstracts were not public records required by law to be kept, but were the private boohs of the parties who made them, and for that reason neither they nor a certified copy of said abstract showing their coutents were admissible in evidence. That ruling is controlling in this case, and convicts the trial court of error in admitting them in evi-dlence in this case. n. The copy from Carleton’s Abstracts of the certificate of entry introduced by respondents showed that Pemiscot county issued a certificate of entry of this land, numbered 1153, to Theodore P. Whitman, dated December 15, 1858, filed in Register’s Book No. 1, page 40, and that the consideration was $773. Conceded! for the sake of the argument that this copy was admissible in evidence and that its showing made out a prima-fade case for respondents, still it was directly and positively disproved and shown to be false by the original abstract, which was also introduced in evidence. The original abstract, as well as the testimony of the witness Shields, the custodian thereof, shows that no “certificate of entry” or “certificate of purchase” appeared anywhere in Carleton’s — 616 — Abstracts. Tbe column of tbe abstract indicating tbe “instrument executed” is blank; so also are tbe columns showing tbe “date of tbe instrument” and tbe “date of tbe filing of tbe instrument,” and so is tbe column blank wliicb shows tbe “book and page” in which tbe instrument was recorded. The original abstract which completely disproved tbe copy thereof also completely disproved and overthrew respondents ’ prima-facie case made thereby; and tbe record failing to show they bad any other evidence of title than said certificate, tbe circuit court should have peremptorily declared as a matter of law respondents were not entitled to tbe relief prayed, as it was requested to do by counsel for appellants. That refusal was reversible error. III. There is still another valid objection to respondents ’ right to a recovery in this case, and that is, this record does not contain a word of evidence which remotely tends to prove that Theodore P. Whitman, or any one for Mm, ever paid the $773 consideration mentioned in the certificated copy of the certificate of entry mentioned in Carleton’s Abstract. This fact, as shown by the cases of Nall v. Conover, supra, and Phillips v. St. Louis Union Trust Co., 214 Mo. 669, constitutes a perfect barrier to respondents’ right to a recovery in this case. Vve, therefore, reverse the judgment, and remand the cause, with directions to the circuit court to enter judgment against respondents and in favor of appellants, as prayed in their answer. All concur.