Robert v. Brown , 157 Ark. 230 ( 1923 )

Wood, J.

The appellant instituted this action against the appellee to recover certain lands which are described in appellant’s complaint. He deraigned title from the State through various mesne conveyances, which he sets out, copies of which he purports to make exhibits to his complaint.

The appellee, in his answer, alleged that he was the owner of the land described in the complaint, and specifically denied each and every muniment of title set up in appellant’s complaint.

In setting out the various conveyances in the chain of title appellant alleged that they were duly recorded. To establish his title appellant called as a witness E. H. Tharp, who testified that he was the attorney for the appellant, and as such examined the record of title, and he exhibited what he designated muniments of title dating back from the government on up to the present. He stated that the deeds which he exhibited were copies of the record; that the originals could not be introduced. He had compared the records and made copies of the deeds and instruments affecting appellant’s title, and offered these copies in evidence.

The court refused to permit the instruments to be considered as evidence, because same were not certified copies and therefore did not meet the requirements of the law to show the chain of title set up by the appellant. At the conclusion of the testimony the appellee moved the court to instruct the jury to return a verdict in his favor, which motion the court granted. The jury returned a verdict as directed. The court entered a judgment in favor of the appellee in accordance with the verdict, from which is this appeal.

Section 1531 of Crawford & Moses’ Digest provides as follows: “If it shall appear at any time that any deed or instrument, duly acknowledged or. proved and recorded as prescribed by this act, is lost or not within the power and control of the party wishing to use tlm same, the record thereof, or a transcript of such record certified by the recorder, may be read in evidence without further proof of execution.”

The appellant did not meet the requirements of the statute. He did not introduce the original deed, but offered only purported copies from the records,, which were not certified by the recorder, as the statute requires. When the purported copy of the record of a deed is offered in evidence it must be certified by the recorder, as prescribed by the statute. “A plaintiff in ejectment must rely upon his own title, and not upon the weakness of the title of his adversary.” Boynton Land & Lumber Co. v. Hawkins, 122 Ark. 374.

The judgment is correct, and it is therefore affirmed.