State v. Crocker

27 S.E. 49, 49 S.C. 242, 1897 S.C. LEXIS 147

• Court: Supreme Court of South Carolina
• Decided: April 20, 1897
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Gary.

The appellants were indicted, tried, and convicted at the March, 1896, term of the Court for Chester County, for obstructing a road described as a common highway. They made a motion for a new trial, which the Circuit Judge refused.

From the sentence imposed upon them they have appealed to this Court upon six exceptions, which will now be considered.

The first and second exceptions are as follows: 1st. “Because the presiding Judge excluded the Hicklin plat, made in 1857, because not proven to be correct by the person who made it; when he should have held that the plat needed no- proof of its genuineness. 2. Because the presiding Judge excluded, as incompetent testimony, the Vincent plat.” The case shows that his Honor first refused, but afterwards allowed the plats to be introduced in evidence. These exceptions are, therefore, overruled.

1 The third exception is as follows: 3. “Because the presiding Judge refused to allow the witness, Farrar, to explain lines of division on the Vincent plat, or to make any explanation of the same.” In order to understand fully the question raised by this exception, it will be necessary to quote from the case as follows: “C. D. Farrar recalled. (Mr. Gage offers plat again. The Court: This plat was made, so this surveyor says, from a plat made by R. J. Otts, and I think, in the light of this other testimony, althcmgh the other testimony was not objected to, I think it will be fair to let this plat in, under the circumstances. Plat offered in evidence, marked ‘exhibit B.’) Q. Now, sir, come down and explain this plat. (Mr. Solicitor objects to the witness explaining the plat. The Court: The question is, now, can he explain the plat- — -doesn’t the plat speak for itself? Mr. Gage: Now, may it please your Honor, I want to ask this witness what those colored lines inside the plat mean. The Court: You can’t do that now, the surveyor is dead. He is the one to explain that plat. Can he now, on account of the death of the surveyor, if he knows what certain lines mean, that being his own land, can he explain — being secondary evidence — the highest and best evidence being the surveyor himself? The Solicitor: I don’t see how he can, unless he is a surveyor. The Court: Can he say what certain lines mean on this plat? The Solicitor: The only question is, whether that plat is a plain plat? If there is an error in it, it may be explained away. The Court: Mr. Gage, I will hear you upon this, whether a party, upon the death of a surveyor, where there is no evidence of what he intends by certain lines, whether an outside party can come here and say what that survey meant? Mr. Gage: The witness testified, in the first place, that Vincent made this plat; that Vincent lived in the same town with him; that he had a personal acquaintance with Vincent; that Vincent made this plat, and it has been in his possession ever since, and the lines were put there by his direction. The Court: Is that the testimony? Mr. Gage: That is the testimony. Is that correct Mr. Farrar? The Witness: That is correct, sir. The Court: The lines on the plat were fixed by his direction? Mr. Gage: Yes, sir; if you look on the plat, you will see these blue cross lines.) Q. You say put by your direction— was that before or after the plat was made? A. Put at the time the plat was made; it was made for that purpose. (Mr. Solicitor: Those are different surveys? A. No, sir, the same survey. Q. You say he put every mark there by your direction? A. No, sir; I didn’t say every mark, but certain marks, the most of them — the divisions — the way it is divided. Mr. Solicitor: If this witness, who claims to be the real party in interest, went and instructed the surveyor to put certain marks upon the plat, and he has been in possession of it, and he brings that plat into Court and it is unintelligible, I do not see how he can be allowed to explain the plat in his own interest. The Court: I will have to sustain the objection. I can’t allow a party outside to say what the surveyor meant by certain marks which are not designated.) Q. I will ask him, then, may it please your Honor, for what purpose he had the survey made? A. I had that survey made to divide it off into certain tracts to sell it to colored people. Q. I see on here ‘Scott Thomson tract’ — what is that? (The Court: He said that, he did it to sell land. I must sustain the objection. Defendants’ counsel excepts.)” Testimony was introduced to show that Vincent was dead. The survey made by Vincent was ex parte, the object being “to divide the land into certain tracts to sell to colored people.” As Vincent was a surveyor, and was not interested, the plat was his written declaration as to the boundaries of the land, and was admissible in evidence. The testimony shows that the blue lines on the plat, which the witness was asked to explain, were placed there by his direction, and cannot, therefore, be regarded as a part of the written declaration of Vincent as to the boundaries. The rule admitting testimony as to the declarations of deceased surveyor; and others, as to boundaries, is not to be extended beyond well settled exceptions. Alexander v. Gossett, 29 S. C., 421; Taylor v. Glenn, 29 S. C., 292; Sexton v. Hollis, 26 S. C., 231. So much of the plat as was made under the direction of the witness must be regarded as his declaration, and not that of Vincent. The witness was a party interested in making the survey, and was not a surveyor. His testimony was, therefore, incompetent to explain the lines placed on the plat by his direction. This exception is also overruled.

2 The fourth exception is as follows: 4. “Because, after the presiding Judge admitted the Vincent plat in evidence, he refused to allow the witness, Simms, to indicate thereon with his finger the location of the disputed road.” The testimony of this witness was not offered for the purpose of explaining an ambiguity or other matter on the face of the plat necessary for a proper understanding thereof; nor for the purpose of varying its term, which, as it was made ex parte and was not attached to and made part of a deed, it seems he could have done by parol testimony. Renwick v. Renwick, 9 Rich., 50. But the sole purpose of introducing said testimony was to allow the witness to point out an imaginary line indicating the location of the disputed road; in other words, the effort was to use the plat as a diagram. This witness afterwards made a diagram, which was introduced in evidence. While we think his Honor might very properly have permitted the witness to indicate the location of the disputed road on the plat, still his refusal to allow the plat to be used as a diagram was not error, and this exception is also overruled.

3 The fifth exception is as follows: 5. “Because the presiding Judge erred in refusing to admit in evidence the books from the office of the register of mesne conveyance to prove the Otts plat, on the ground that ten days’ notice of the purpose to offer the same had not been given to the solicitor.” Section 2361 of the Rev. Stat. is as follows: “A copy of any deed of conveyance of real estate, certified by the register of mesne conveyance of the county where the same may be recorded, may be produced in evidence, in every court of this State, for any party, plaintiff or defendant, in like manner and subject to the same rules as are provided by the foregoing section in relation to grants and plats: Provided, That the party intending to offer in evidence such office copy shall give at least ten days’ notice thereof to the opposite party or his attorney.” It will be observed that this section has reference only to a certified copy, and not to the record itself. The appellants’ attorney did not offer to introduce in evidence a copy of the plat, certified by the register of mesne conveyance, but the original books of record. In ruling upon the admissibility of said testimony, his Honor said: “You have established the fact that the Otts plat is lost and can’t be found. Now, if you were entitled to introduce secondary evidence, could you introduce it without notice?” The only objection to the introduction of the books in evidence was on the ground that the ten days’ notice required by the statute had not been given, to the solicitor. His Honor -was satisfied that the deed was lost and could not be found. The question, then, for consideration is, whether ten days’ notice is required when the party offers to introduce in evidence not a certified copy of a record, but, the record itself. The object in allowing copies to be used in evidence was because of the inconvenience to the public that would necessarily arise from removing records, especially if they were wanted in different, places at the same time. Gr. on Ev., sec. 91. Section 2371 of the Rev. Stat. of 1893 is as follows: “Nothing herein contained shall 'prevent any one from establishing, on the trial of any cause, any lost papers according to the rules of evidence existing at common law.” (This section is the same as the proviso in subdivision 5 of section 2230, Rev. Stat. of 1882.) • We are by this section remanded to the common law to ascertain the manner of proving a lost deed which -has been recorded. A plat attached to a deed becomes a part of the deed. Renwick v. Renwick, 9 Rich., 50; Duren v. Sinclair, 22 S. C., 361. Under our recording acts, the registration of a deed constitutes a public record. Two of the modes of proving a lost deed are, by the record thereof, and a certified copy of the record; but they are separate and distinct. Both these methods of proof were provided by the act of 1731, which is partially set out in Purvis v. Robinson, 1 Bay, 493, and in the note to Peay v. Pickett, 3 McC., 318. The proof of a lost deed 'by the record thereof is made by virtue of a rule of evidence existing at common law; while the right to introduce a certified copy is purely statutory. The rule of evidence relative to the proof of a record is thus stated in Gr. on Ev., sec. 501: “As to the proof of records, this is done by mere production of the records, or by a copy. Copies of record are (1) exemplifications; (2) copies made by an authorized officer; (3) sworn copies. Exemplifications are either, first, under the great seal, or, secondly, under the seal of the particular court where the record remains.” * * * It thus appears that one of the modes of proving a record is by the production of the record itself, which the appellants offered to do in this case. As section 2361 makes no reference to proof of a lost deed by the introduction of the record thereof, but only provides for the introduction in evidence of a certified copy, upon compliance with the requirements therein mentioned, this Court is not at liberty to add to the provisions of said section by making it apply also to the introduction in evidence of the record itself. Section 2371 sustains this view, and shows clearly that section 2361 was not intended to be exclusive, but that the rules of evidence existing at common law are still of force. In construing the act of 1731, out of which section 2361 arose, the Court, in Purvis v. Robinson, supra, said: “* * * it (the act of 1731) did not appear to intend any alteration in the rules of evidence, but only to provide a more certain and authentic mode of supplying the loss of deeds.” The books were better evidence than the Vincent copy of the Otts plat, because, first, they constituted a record; second, an officer is presumed to have discharged his duty, and it was his duty to have examined the copy on the books of record to see that it corresponded with the original deed; and, third, the deed could not have been placed on record until it was probated. None of these safeguards were thrown around the copy made by Vincent. These views do not conflict with the ruling in Duren v. Sinclair, 22 S. C., 361, because in that case no attempt was made to prove the loss of the deed, and the Court necessarily reached the conclusion announced in that case upon this question. As this case does not come within the provisions of section 2361, it was not necessary to give the notice required by that section. Hobbs v. Beard, 43 S. C., 370. The several plats played an important part upon the trial of the case; the testimony offered by the defendants was in rebuttal of that brought out by the State, and the refusal by the presiding Judge to allow its introduction without notice was erroneous. The fifth exception is, therefore, sustained.

4 The sixth exception is as follows: 6. “Because the presiding Judge erred in refusing to set aside the verdict on the ground that there was no proof that the road in question was a common highway.” This exception only involves a question of fact, which is not the subject of review by this Court, and is, therefore, overruled.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.