Connor v. Pushor

Beal Action. Lost Deed. Evidence. It is competent for the defendant in a real action to disprove the plaintiffs seizin by oral evidence of a lost deed. But when there is no record of such a deed, the oral evidence of its existence, and of its contents, should be full clear, strong and thoroughly convincing. In other words, it should be plenary.

On motion and exceptions. This was a real action to recover possession of a small piece of land situate in Pittsfield village, in the County of Somerset. Plea, the general issue. During the progress of the trial the defendants introduced evidence tending to prove the loss of an unrecorded deed from Hiram B. Connor to Thomas McCausland of the piece of land in controversy, also a deed of release with a persona] covenant of warranty from McCausland to Harriet Chase. It did not appear, however, that Harriet Chase ever had possession of the premises. The plaintiffs claimed title to said land as heirs of said Hiram B. Connor. The justice presiding instructed the jury among other things as follows : "When parties seek to supply the place of a lost deed, in view, as I say, of the importance of having a degree of certainty and stability in titles to real estate, the evidence to satisfy you that there has been a deed and that it has been lost should be clear and convincing, and as to the character of the instrument it should be clear and convincing. There should be evidence, in other words, that should give you a clear preponderance in favor of that proposition that there has been a deed and that it has been lost; and the contents of that deed should be given to that degree of satisfaction that you feel that there must have been a conveyance of real estate. I do not mean to say, of course, that there is any different burden of proof on this proposition than in any other class of civil investigations. It is a preponderance of all the evidence in the ease. But the evidence I say should be clear and satisfactory within the limits of preponderance of evidence. "Though he [Thomas McCausland,] undertook to warrant against all persons whatsoever, not only against any one under him, but against all persons whatsoever, yet, as Isay, notwithstanding the clause of warranty in that form, it is not necessarily any evidence that Thomas McCausland had received a deed from Hiram B. Connor. ... If you find that there was such a deed, and it is claimed that if you find the testimony of Franklin McCausland to be true at all in relation to it, you ought to find there was a regular deed and sufficient to pass the title — if you find there was such a deed, which passed the title to this parcel of land to Thomas McCausland, then of course it did pass out of Hiram B. Connor at that time before his decease ; and unless he was afterwards reinvested with the title to that quarter of an acre of land, these heirs would not inherit from him, as I have already said ; and they would have no title, unless they acquired it under the laws relating to title by possession, and I do not understand that to bo insisted upon by counsel for plaintiffs if there was no record title in them. If it did not, if there wras no such deed, if you do not find the evidence satisfactory, sufficient, clear and convincing, either that there was a deed and that it has been lost, or not satisfied that it described this property, then, of course, so far as this properly is concerned the title remained in Hiram B. Connor.” The jury returned a verdict for the plaintiffs, and the defendants took exceptions.