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STEBBINS V. DUNCAN, 108 U. S. 32 (1883)

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U.S. Supreme Court

Stebbins v. Duncan, 108 U.S. 32 (1883)

Stebbins v. Duncan

Decided March 5, 1883

108 U.S. 32

Syllabus

1. Suggestion of the death of a plaintiff in the record, and an order to make his devisees parties, is prima facie evidence of his death for the purposes of the trial.

2. The existence of a deed, and its destruction by fire being proven, it is competent for the party offering it to prove its contents by a witness who knows them.

3. It being shown that a paper produced is a copy of a lost deed (but without the official certificate), the copy is competent evidence.

4. The witnesses to a deed being dead, the execution of the deed is to be proven by proof of the handwriting of the subscribing witnesses.

5. When a deposition has been destroyed by fire, and a copy, admitted to be such, is offered in evidence, it is not sufficient to object that it has not been shown that the witness is dead, or is incompetent to testify, or that the deposition cannot be retaken. It should be also objected that the witness does not live in another state, or more than one hundred miles distant from the place of trial, in order to lay ground for excluding the copy.

6. In error, the court can consider only the objections specifically taken at the trial.

7. The execution of the deed being proven according to law, slight proof of the identity of the grantor is sufficient. In tracing titles, identity of names is prima facie proof of identity of persons.

8. It is a general rule in the Illinois that when a person has executed two deeds for the same land, the first deed recorded will hold the title.

9. The deed under which the plaintiff claimed was not acknowledged and certified as required by the laws of Illinois to admit it to record. It was, however, recorded. A duly certified copy of this record, and a certified copy of the original memorandum of record were offered, and a witness testified that the deed was a copy of the original deed. Held that under the decisions of the courts in Illinois, this was proof that such deed and memorandum were of record, so as to give notice to subsequent purchasers.

This was an action for the possession of real estate in Illinois, involving title. The plaintiffs claimed under a sale on execution in a judgment recovered by the United States against one Duncan. Duncan's title was derived from a deed from one Dunbar to one Prout, dated January 6, 1818, and chanroblesvirtualawlibrarychanroblesvirtualawlibrary

Page 108 U. S. 33

recorded October 29th, 1838. The defendants claimed under a deed from Dunbar to one Frank, also dated January 6, 1818, and entered for record June 18, 1870.

The suit was begun in the name of one Morris, who died pending it. His death was suggested on the record, and at the trial proof, of the probate of his will was offered as proof of his death. The first question was on the ruling of the sufficiency of the proof of this fact.

The original deed from Dunbar to Prout was witnessed by one Smallwood, who resided in Washington. Smallwood being dead, the execution of the deed was proved by depositions of persons residing in Washington to the genuineness of Small wood's signature. The next question was as to the sufficiency of that proof without more complete proof than was offered of the identity of Dunbar.

The deposition and the original deed attached to it were destroyed in the great fire of Chicago. The next questions were as to the admissibility of a copy of the deposition, and as to its sufficiency to prove the signature of the witness.

The original deed was defectively acknowledged. It was, however, admitted to record. A certified copy of the record, and a certified copy of the original memorandum of the entry for record were produced, and a witness testified that the copy produced from the record was a copy of the original deed. The next question was as to the sufficiency of this proof to allow the deed to be read in evidence.

The last question discussed was as to the effect of the record of the deed to Prout upon the title derived through Frank.

The further details necessary for understanding the points decided are set forth in the opinion of the Court. These are deemed to be sufficient for comprehending the points in the argument. chanroblesvirtualawlibrarychanroblesvirtualawlibrary

Page 108 U. S. 35





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