Chapter 39. RECORDS AND PAPERS.
Article 1. Authentication and Record of Writings.
Revisers’ Note.-—Sections 6a, 11 and Ila, c. 73, Code 1923, are transferred to art. 11, c. 37. Section 8a of said c. 73 is omitted as covered by §2, art. 3 of this chapter. --- RIGHT COLUMN --hentication and Record of Writings. 39-1-3
§1. Power of Attorney May be Recorded.—A power of attorney may be admitted to record in any county.(Code 1849, c. 121, §1; Code 1860, c. 121, §1; Code 1868, c. 73, §1; 1875, c. 67, §1; 1882, c. 149, §1; Code 1923, c. 73, §1.)
§2. Instruments Recordable.—The clerk of the county court of any county in which any deed, contract, power of attorney, or other writing is to be, or may be, recorded, shall admit the same to record in his office, as to any person whose name is signed thereto, when it shall have been acknowledged by him, or proved by two witnesses as to him, before such clerk of the county court.(Code 1849, c. 121, §2; Code 1860, c. 121, §2; 1863, c. 1, §§1, 2, 3, 4; Code 1868, c. 73, §2; 1872-3, c. 14, §§1, 2; 1875, c. 67, §2; 1882, c. 149, §2; Code 1923, c. 73, §2.)
§3. Who May Take Acknowledgment.—Upon the request of any person interested therein, such clerk of the county court shall also admit any such writing to record, as to any person whose name is signed thereto, upon a certificate of his acknowledgment before the president of a county court, a justice of the peace, notary public, recorder, prothonotary or clerk of any court, within the United States, the Philippine Islands, Island of Porto Rico, Territory of Alaska, Territory of Hawaii, or any other territory, possession or dependency of the United States, or a commissioner appointed within the same by the governor of this State, written or annexed to the same; or upon a certificate so written or annexed under the official seal of any ambassador, minister plenipotentiary, minister resident, charge d’affaires, consul general, consul, deputy consul, vice consul, consular agent, vice consular agent, commercial agent, or vice commercial agent, appointed by the government of the United States to any foreign country, or of the proper officer of any court of record of such country, or of the mayor or other chief magistrate of any city, town or corporation therein, that such writing was acknowledged by such person, or proved as to him by two witnesses, before any person having such appointment, or before such court, mayor, or chief magistrate.Code 1849, c. 121, §3; Code 1860, c. 121, §3; 1863, c. 1, §1; Code 1868, c. 73, §3; 1875, c. 67, §3; 1882, c. 149, §3; 1883, c. 13, §3; Code 1923, c. 73, §3.)
Revisers’ Note—This section contains all of §3, c. 73, Code 1923, except the form of certificate, which appears in the following section, and the last sentence, which is embodied in §10 of this article. Presidents of county courts are added to the list of authorized officers, as provided in §3a, c. 39, Code 1923. The provision referring to territory and insular possessions and dependencies of the United States is new. In the latter portion of the section, relating to acknowledgments in foreign countries, ambassadors and ministers resident are added to the list of authorized officials, and the court whose officer may take the acknowledgment is required to be a court of record. The changes noted in this paragraph are largely in conformity with §§5205 and 5206, Code Va. 1919.
§4. Form of Certificate of Acknowledgment.—The certificate of acknowledgment mentioned in the preceding section may be in form or effect as follows:
I, ..........................., a commissioner, appointed by the governor of the State of West Virginia, for the said State (or territory or district) of ..................; or I, ........................, a justice of the peace of the county aforesaid; or I, ...................., recorder of said county; or I, ..........................., a notary public of said county; or I, ...................., a prothonotary (or clerk) of the..................court of said county; (or other officer or person authorized to take acknowledgments by section three of this article, as the case may be), do certify that ...................., whose name (or names) is (or are) signed to the writing above (or hereto annexed) bearing date on the...............day of..........................., 19........, has (or have) this day acknowledged the same before me, in my said..............................
Given under my hand this.....................day of .............................., 19.........
(Code 1849, c. 121, §3; Code 1860, c. 121, §3; Code 1868, c. 73, §3; 1875, c. 67, §3; 1882, c. 149, §3; 1883, c. 13, §3; Code 1923, c. 73, §3.)
Revisers’ Note.—This section comprises the middle portion of §3, c. 73, Code 1923. The words, “or other officer or person authorized to take acknowledgments by section three of this article, as the case may be,” taken from the following section, are new. The rest of said §3 is covered in §§3 and 10 of this article.
§5. Acknowledgment by Husband and Wife; Form of Certificate.—When a husband and wife have signed a writing purporting to sell or convey real estate, the wife may acknowledge the same together with, or separately from her husband. Either the husband or the wife may sign and acknowledge such writing before the other has signed or acknowledged it. If both acknowledge such writing at the same time, the certificate of such acknowledgements may be in form or effect as follows:
I, ..........................., a commissioner appointed by the governor of the State of West Virginia for the said State of ........................, (or territory or district of....................); or I, ...................., a justice of the peace of the said county of............; or I, ........................, a notary public of the said county of................; or I, ...................., prothonotary (or clerk) of the ................ court or county of ........................; (or other officer or person authorized to take acknowledgments by section three of this article, as the case may be),* do certify that....................and...................., his wife, whose names are signed to the writing above (or hereto annexed) bearing date the................... day of.............................., 19........, have this day acknowledged the same before me in my said..............................
Given under my hand this............................day of.............................., 19.........
If the husband or wife acknowledge a deed or other writing separately from the other, the certificate of acknowledgment after the star in the foregoing form shall be in form or effect as follows:
Given under my hand this............................day of.............................., 19.........
(Code 1849, c. 121, §4; Code 1860, c. 121, §4; 1861-2, c. 9; §4; 1865, c. 48, §§1, 2; Code 1868, c. 73, §4; 1875, c. 67, §4; 1882, c. 149, §4; 1883, c. 13, §4; 1891, c. 23, §4; 1919, c. 65, §4; Code 1923, c. 73, §4.)
Revisers’ Note.—The entire second sentence is new. It is intended to change the rule stated in Cecil v. Clark, 44 W. Va. 659, as has already been done by Acts 1921, c. 63, with reference to past acknowledgments. By this revision (see §2, art. 3, c. 48), the husband’s consent as a prerequisite to the wife’s conveyance of her own property is no longer necessary. In the clause preceding the second form the words “husband or” are inserted before the word “wife” and the words “separately from the other” are used in place of the words “separately from her husband.” In the second form the words “(or the husband of...................., as the case may be)” are new. These changes are for the purpose of putting husband and wife on an equal basis with reference to the conveyancing of property. The last paragraph of §4, c. 73, Code 1923, providing for the notarial seal when the acknowledgment is taken without the State, is incorporated in §10 of this article.
§6. Certificates as to Wives Living Separate and Apart, Heretofore Taken, to be Prima Facie Evidence.—The certificate of acknowledgment heretofore taken of a married woman to a deed or other writing conveying, or agreeing to sell and convey, real estate which was her sole and separate property, purporting to show that at the time of its execution and acknowledgment such married woman was living separate and apart from her husband, shall, in all cases where the validity of any such deed or other writing comes in question, be prima facie evidence of the facts therein stated.(Code 1868, c. 73, §6; 1875, c. 67, §6; 1882, c. 149, §6; 1891, c. 23, §6; 1919, c. 65, §6; Code 1923, c. 73, §6.)
Revisers’ Note.—The above is a revision of a part of §6, c. 73, Code 1923. As this revision puts a married woman on equal terms with her husband as regards the ownership and conveyancing of her own property (see §2, art. 3, c. 48), those parts of said §6 giving authority to a married woman, when living separate and apart from her husband, to make and acknowledge conveyances of her own property, providing a form of certificate for the officer taking the acknowledgment in such a case, and imposing a penalty on any officer who certifies falsely in such cases, are omitted. That part of said §6 dealing with the effect of a married woman’s acknowledgment appears in §§3 and 4, art. 3, c. 48. A general provision imposing a penalty for false certificate appears as §7 of this article, and takes the place of the penalty provision above mentioned.
§7. Penalty for False Certification.—If any person shall in any case wilfully make any false certificate of acknowledgment, contrary to the true facts in the case, or shall certify the acknowledgment of any person whom he does not personally know to be the person whose name is signed to the writing acknowledged, he shall be guilty of a misdemeanor, and, upon conviction thereof, be fined not more than five hundred dollars, and imprisoned not more than sixty days, at the discretion of the court.(Code 1868, c. 73, §6; 1875, c. 67, §6; 1882, c. 149, §6; 1891, c. 23, §6; 1919, c. 65, §6; Code 1923, c. 73, §6.)
Revisers’ Note.—This section is a revision of the penalty provision of §6, c. 73, Code 1923. It applies to all cases where false certificates are made. Under said §6 only the certificate of the wife who is living separate and apart from her husband is covered. The penalty is extended to cover instances where the acknowledgment is certified without personal knowledge of the identity of the parties, and is made more definite by prescribing limits to the amount of the fine and the term of the imprisonment. For other parts of said §6, see §6 of this article and §§3 and 4, art. 3, c. 48.
§8. Form of Certificate of Acknowledgment by Attorney in Fact.—When any writing has been executed by an attorney in fact, and an acknowledgment of the execution thereof is required or authorized for any purpose, the certificate of acknowledgment may be in form or effect as provided in section four of this article as far as the words “do certify,” and thence as follows:
Given under my hand this............................day of.............................., 19.........
Revisers’ Note.—This section is new, being modeled partly on the Uniform Acknowledgments Act.
§9. Acknowledgment by Corporation.—The certificate of acknowledgment of a corporation may be in form or effect as prescribed in section four of this article as far as the words “do certify” and thence as follows:
Given under my hand this............................day of........................, 19.........
(1891, c. 23, §5; Code 1923, c. 73, §5.)
Revisers’ Note.—The words “section four of this article as far as the words do certify” are substituted for the words “the next preceding section down to the star.” The provisions relating to joint stock associations are omitted as superfluous. The provisions relating to the corporate seal are omitted in view of the fact that the use of the seal on corporate deeds is abolished by §1, art. 3, c. 36. The form of acknowledgment is also shortened and substantially follows that given in Code Va. 1919, §5207.
§10. When Certificate to be Under Official Seal.—If any acknowledgment be before a notary without this State, he shall certify the same under his official seal.(1882, c. 149, §§3, 4; 1883, c. 13, §§3, 4; 1891, c. 23, §4; 1919, c. 65, §4; Code 1923, c. 73, §§3, 4.)
Revisers’ Note.—The language of this section appears at the end of both §§3 and 4, c. 73, Code 1923. The rest of said §3 is covered in §§3 and 4, and the rest of said §4 is covered in §5 of this article.
§11. Recordation of Writings and Plats and Papers Annexed; Index; Interlineations.—Every writing authorized by law to be recorded, when admitted to record, shall, with all certificates of acknowledgment, and all plats, schedules and other papers thereto annexed or thereon indorsed, be recorded by, or under the direction of, the clerk of the county court, in a well-bound book, to be carefully preserved; and there shall be an index to such book as well in the name of the grantee as of the grantor. After being so recorded, such writing may be delivered to the party entitled to claim under the same. If there appear upon such writing, or any paper or certificate annexed thereto, any interlineation, erasure or alteration, of which no memorandum is contained in the writing, paper or certificate, the clerk shall append to the record thereof a memorandum describing as accurately as may be such interlineation, erasure or alteration; and such memorandum shall be copied into every certified copy of such writing, paper or certificate. Every such memorandum, or a duly certified copy thereof, shall be prima facie evidence of what is therein stated.(Code 1849, c. 121, §8; Code 1860, c. 121, §8; Code 1868, c. 73, §7; 1875, c. 67, §7; 1882, c. 149, §7; 1891, c. 23, §7; Code 1923, c. 73, §7.)
Revisers’ Note.—The words near the beginning of the section, “Every writing authorized by law to be recorded,” are substituted for the words “Every such writing.”
§12. Special Recordation of Writing Not Acknowledged or Proved for Regular Recordation.—If any writing which it is lawful for a clerk of the county court to admit to record, on proper acknowledgment or proof, has been or shall be lodged in his office, and has remained or shall remain therein six months without being acknowledged or proved so that it can be duly admitted to record, the clerk of the county court shall, for the preservation thereof, when required by any person interested, copy the same into a book separate from those in which writings properly acknowledged or proved are recorded, and keep an index to such book, as in the case of writings duly admitted to record. In case of the loss or destruction of any such writing, such copy shall be prima facie evidence of the contents thereof.(Code 1849, c. 121, §11; Code 1860, c. 121, §11; Code 1868, c. 73, §10; 1875, c. 67, §10; 1882, c. 149, §10; Code 1923, c. 73, §10.)
Revisers’ Note.—To make the meaning more obvious, the words “properly acknowledged or proved,” after “writings,” are substituted for the words “so admitted.”
§13. Duty to Record Plat or Plan of Lots.—When any tract or parcel of land within the limits of any county of the State has been or shall be hereafter subdivided into lots by any partition of land or by order of the owner or owners, or his or their agent, or otherwise, and any lot or lots have been sold or conveyed, or are offered for sale, from the tract or parcel of land so divided, according to a plat or plan of subdivision, without such plat or plan of subdivision having been filed for record, it shall be the duty of the owner or owners of such tract of land, or his or their agent, authorizing such plat or plan of subdivision of such tract of land to be laid out, to file such plat or plan for record in the office of the clerk of the county court and the office of the county assessor of the county wherein such land so divided is situate.(1915, c. 47, §1; 1921, c. 151, §12; Code 1923, c. 73, §12.)
Revisers’ Note.—This section is the first paragraph of §12, c. 73, Code 1923. The rest of said §12 is incorporated in §§14 and 15 of this article. The word “agent” in the latter part of the section is substituted for the indefinite word “representative.” The words “or owners” after “owner” are new. Other changes formal in nature are made.
§14. Notification to File Plat for Record.—Upon notice from the clerk of the county court wherein such land so divided is situate, or upon notice from any person owning a lot or lots (or an undivided share or any interest therein) in any such tract or parcel of land so divided, to the owner or owners or his or their agent, that the plat or plan of subdivision has not been properly filed, the owner or owners, or his or their agent, shall cause the same to be properly filed for record within sixty days from such notification.(1915, c. 47, §1; 1921, c. 151, §12; Code 1923, c. 73, §12.)
Revisers’ Note.—This section is the second paragraph of §12, c. 73, Code 1923. The rest of said §12 is incorporated in §§13 and 15 of this article. The language is so altered as to make the section expressly apply to more than one owner. The parenthetical expression, “or an undivided share or any interest therein,” is new. Likewise, the concluding words, “within sixty days from such notification.” The word “agent” is substituted for the indefinite word “representative.”
§15. Penalty for Failure to File Plat.—If such owner, or owners, or his or their agent, upon having been so notified, shall fail to cause such plat or plan to be filed in such offices as aforesaid, such owner, or owners, or his or their agent, shall forfeit and pay the sum of two hundred dollars for each period of sixty days that shall elapse after such notification without such plat having been filed for record, such sum or sums to be recovered as debts of like amount are by law recoverable at the suit of any party, or parties, giving such notice. The party or parties bringing such suit shall be entitled to one-half of the amount so recovered and the other half shall go to the county fund of such county.(1915, c. 47, §1; 1921, c. 151, §12; Code 1923, c. 73, §12.)
Revisers’ Note.—This section is the last paragraph of §12, c. 73, Code 1923. The rest of said §12 is incorporated in §§13 and 14 of this article. The language of the third paragraph of §12, c. 73, Code 1923, imposing the penalty, is obscure, providing additional penalties for additional failures to file without indicating what shall constitute additional failures. This obscurity is remedied by providing a separate penalty for each successive period of sixty days during which there is failure to file. The words “or parties” in the last sentence are new. The word “agent” is substituted for “representative,” as in the two preceding sections.
§16. Approval by City Council or Commissioners Before Laying Out Subdivision.—In case a proposed subdivision of any lot or parcel of land is situate within the corporate limits of any municipality, or abutting thereon, it shall be the duty of the owner, or owners, or his or their agent, to submit a plat or plan of such subdivision to the council or commissioners of such municipality, showing the street and alley connections that such subdivision makes with such municipality, and furnishing full information for the purpose of determining whether the proposed subdivision will impede or prevent the further development and extension of such municipality where such subdivision is situate. Before any such subdivision is finally laid out, it shall have the approval of the council or commissioners of the municipality wherein the subdivision is situate, or upon which it abuts, and such approval and the date thereof shall be indicated on the plat or plan of such subdivision before the same is finally filed in the office of the clerk of the county court and the county assessor’s office.(1921, c. 151, §13; Code 1923, c. 73, §13.)
Revisers’ Note.—This section comprises the first paragraph of §13, c. 73, Code 1923. The rest of said §13 is incorporated in §17 of this article. The word “finally,” after the words “laid out,” near the beginning of the second sentence, is new. Likewise, the words “or upon which it abuts,” after the word “situate.” near the end of the section, are new. The word “agent” is substituted for “representative,” as in preceding sections. Other changes are formal.
§17. Duty to Provide Corner Stone Monuments; Acknowledgment or Proof Not Necessary to Recordation of Plat.—It shall be the duty of the engineer in charge, or the owner, or owners, or the agent of the owner or owners, of any subdivision of land in this State to have permanent corner stone monuments, of stone or concrete, not less than twenty-four inches in length by six inches square at the top, or not less than six inches in diameter, with proper eenters, placed at the most important corners (where permanent corners do not already exist) so that there shall be not less than two permanent corners to each lot or block of any subdivision thereafter made, and the position of the same shall be indicated on the plan or map when finally filed for record. No certificate of acknowledgment, or other proof thereof, shall be necessary or prerequisite to the recordation of such plat, map or plan.(1921, c. 151, §13; Code 1923, c. 73, §13.)
Revisers’ Note.—This section comprises the second paragraph of §13, c. 73, Code 1923. The rest of said §13 is incorporated in §16 of this article. The word “agent” is substituted for “representative,” as in preceding sections.
Article 2. General Index and Preservation.
§1. Preparation of General Index.—The county court of any county may order the clerk of such court to provide a general index for the deed books, trust deed books, judgment lien dockets, marriage records, release deed books, or other record books, or any of them, in such clerk’s office; and may order the clerk of the circuit court, or the clerk of any other court of record, of such county to provide a general index for the law and chancery order books, or other record books, or any of them, in his office; or may let to the lowest bidder a contract to provide any such general index or indexes.[1871, c. 91, §1; 1911, c. 63, §7a (1); 1917, c. 34, §7a; 1921, c. 74, §7a; Code 1923, c. 73, §7a(1).]
Revisers’ Note.—This section contains the substance of the first portion of §7a(1), c. 73, Code 1923, with changes for grammatical reasons. The middle portion of said §7a(1), prescribing how entries shall be made in the index, is embodied in the following section. The portion relating to clerk’s fees is omitted as having served its purpose. As to the provisos in the old section, see revisers’ note to following section.
§2. Contents of General Indexes.—In the appropriate general index in the office of the clerk of the county court, to the extent that the same has been or shall be provided, shall be indexed the names of all grantors and grantees of deeds, trust deeds, release deeds, contracts, leases, or other writings; the names of the parties to marriage records; and the names of all persons for or against whom judgments or decrees are rendered. Where a deed has been executed by a trustee, special commissioner or other officer, it shall be indexed in the name of the former owner of the property conveyed, as well as in the name of the person executing such deed. In the general index in the office of the clerk of the circuit court, or other court of record, to the extent that such index has been or shall be provided, shall be indexed the names of all plaintiffs and defendants, versus and adversus, for or against whom judgments or decrees have been rendered, at law or in chancery. In addition to the foregoing requirements, any clerk may include, or direct to be included, in any general, index such data as he shall deem proper. It shall be the duty of every clerk for whose office a general index has been provided, to make all proper entries in each general index in his office within a reasonable time after making the recordation to which the index entry pertains.[1871, c. 91, §§1, 2; 1911, c. 63, §7a(1); 1917, c. 34, §7a; 1921, c. 74, §7a; Code 1923, c. 73, §§7a(1), 7a(2).]
Revisers’ Note.—This section, although largely new, contains the substance of §7a(2), c. 73, Code 1923, and that part of §7a(1) of the same chapter prescribing the entries to be made in the general index. The provisos in §7a(1) relating to prior contracts are omitted as having served their purpose.
§3. Binding or Transcribing of Records of County Courts and Other Courts; Allowance Therefor.—The county court of any county may order any of the books and records in its clerk’s office and either the county court or the circuit court, or any other court of record, may order any of its own books or records, to be bound or transcribed, and shall make a reasonable allowance therefor, which shall be paid out of the county treasury.(Code 1849, c. 176, §7; Code 1860, c. 176, §8; Code 1868, c. 130, §9; 1872-3, c. 81, §9; 1882, c. 160, §9; Code 1923, c. 130, §9.)
Revisers’ Note.—The provisions of this section are made to apply to all courts of record, instead of merely to county courts and circuit courts, as in §9, c. 130, Code 1923. The county court is given power to have bound and transcribed, not only its own records, but also any records in its clerk’s office.
§4. Verification of Transcript by Commissioners Prerequisite to Allowance; Effect of Transcript After Approval.—No such allowance shall be made for any transcript until commissioners appointed for the purpose by the court ordering the transcript to be made shall have examined it and written at the foot thereof a certificate of its correctness. Thenceforth the same faith and credit shall be given to it that the book or record transcribed would have been entitled to.(Code 1849, c. 176, §8; Code 1860, c. 176, §9; Code 1868, c. 130, §10; 1882, c. 160, §10; Code 1923, c. 130, §10.)
Revisers’ Note.—The words “ordering the transcript to be made” after “court,” are new.
§5. Taking Records Out of County for Binding.—Any court authorized by section three of this article to have any books or records rebound may have the same taken out of the county for such purpose.(Code 1849, c. 176, §9; Code 1860, c. 176, §10; Code 1868, c. 130, §11; 1882, c. 160, §11; Code 1923, c. 130, §11.)
Revisers’ Note.—The limitation as to any court authorized by §3 of this article is new.
Article 3. Reconstruction of Lost Records and Papers.
Revisers’ Note.—Sections 2 and 8, c. 73A, Code 1923, are omitted, §2, because it does not serve any essential purpose, and §8, because the duties perormed by a special commissioner, under c. 73A, Code 1923, are performed, under the provisions of his article, by the clerk of the county court.
§1. Admission to Record of Certified Copy When Original Writing Lost, Mislaid or Detroyed.—If any writing be admitted to record in any county and it be proper for such writing to be admitted to record in another county, and the same before having been admitted to record in such other county be lost, mislaid or destroyed, on affidavit of such fact, the clerk of the county court of such other county may admit to record a properly certified copy of such writing from the records of any county wherein it is recorded; and the record of the copy so admitted shall have the same effect as if the original had been admitted to record at the time when the copy is admitted. The clerk of the county court of any county shall also admit to record such copy of a record or paper as is mentioned in section nine, article one, chapter fifty-seven of this Code.(Code 1849, c. 121, §9; Code 1860, c. 121, §9; Code 1868, c. 73, §8; 1875, c. 67, §8; 1882, c. 149, §8; Code 1923, c. 73, §8.)
Revisers’ Note.—The phraseology of this section is changed throughout to secure greater clarity. The word “destroyed,” after “mislaid,” near the beginning of the section, is new, although it likely is not necessary in view of §6 of this article.
§2. Lost Records or Papers Recorded or Filed Anew; Effect as Evidence.—Where any book containing judgments, decrees, orders or proceedings of a court, or proceedings at rules, or any book containing the record of wills, deeds or other papers, or where any paper filed in a clerk’s office, is lost, the clerk in whose office such book or paper was, upon the pro duction to him of any original paper which was recorded in such book, or any attested copy of the record thereof, or of an attested copy of anything else in such book, or of any paper so filed, shall, on application, record or file the same anew. The record shall show whether it is made from an original or a copy, and how the paper from which it is made was authenticated or attested. Such record shall have the same effect that the record or paper for which it is substituted would have had.(Code 1849, c. 176, §11; Code 1860, c. 176, §12; 1863, c. 37, §2; Code 1868, c. 130, §13; 1882, c. 160, §13; Code 1923, c. 130, §13.)
Revisers’ Note.—In the last sentence, the words “prima facie” are omitted before the words “the same effect,” thus making this section harmonize in effect with the preceding section and the following section.
§3. Recordation of Certified Copies at Instance of County Court When Record Lost or Destroyed.—Where any records have been or shall be lost or destroyed, by fire or otherwise, and the contents thereof shall have been recorded in the clerk’s office of any court of any county in this State, or in the auditor’s office, or in any other proper office in this State, the county court of the county wherein such records are so lost or destroyed may cause duly certified copies of the same to be procured from the auditor’s office, such clerk’s office or other proper office of any county; and it shall be the duty of the auditor or the clerk of any court of this State, or other custodian of records, to permit such copies to be made, and, when correctly copied and certified to be true copies of such record, the same shall be recorded in the proper clerk’s office of the county wherein such records are lost or destroyed, in well-bound books provided for that purpose, whereupon the record thereof shall have the same force and effect as evidence for all purposes as the original records have, or would have had, and copies may be taken and certified by the clerk in whose office such copied records may be, which copies, when so made and certified by such clerk, shall be received as prima facie evidence for all purposes, and with like effect as copies from original records. And the county court of any county desiring to procure copies of any such records in other counties or offices shall make provision for the payment of such fees therefor as may be allowed by law or agreed upon.(1895, c. 15, §1; Code 1923, c. 73A, §10a.)
Revisers’ Note.—The effect of this section is broadened so as to include copies of records from any office in the State where writings are properly recorded. Other changes made are for the purpose of improving the language and more clearly expressing the intent of the statute.
§4. Loss of Court Records; Reentries; Effect as Evidence.—Where any book containing judgments, decrees, orders or proceedings of a court, or proceedings at rules, is lost, and there can be again entered correctly, by means of any writing, any matters which were in such book, the court may cause its clerk to have such matters reentered, and such entries shall have the same effect as the original entries.(Code 1849, c. 176, §10; Code 1860, c. 176, §11; 1863, c. 37, §1; Code 1868, c. 130, §12; 1882, c. 160, §12; Code 1923, c. 130, §12.)
§5. Loss of Original Papers in Any Cause or Appellate Court Record; Effect of Papers Supplied.—If, in any cause, the original papers therein, or any of them, or the record for or in an appellate court, or any paper filed or connected with such record, be lost, the court wherein the case is, or in which, but for such loss, it would or ought to be, may docket the same, and, on affidavit of such loss, the cause may be proceeded in, heard and determined, upon an authenticated copy of what is lost, or proof of the contents thereof; or if the cause be in an appellate court, upon a new record made up from the records and papers of the court below, and certified by the proper officer; or, in case the record and papers, or any part thereof, be lost or destroyed, the court below may, upon application of either party, upon reasonable notice to the opposite party, supply such record or part thereof, from the best evidence before it, either documentary or parol, which may be used in the court of appeals for the same purposes that the original might be. The court may, however, at the instance of either party, or in its discretion, require new pleadings to be made up in whole or in part; and the plaintiff, instead of proceeding as hereinbefore provided for, may commence and prosecute a new suit for the same matter; and such new suit may, if the former suit was in due time. be brought within one year after such loss, notwithstanding the expiration of the time within which suit must otherwise have been brought. If a cause has been decided and the original papers therein have been lost, the court by which the cause was decided, on affidavit of such loss, by some person interested therein and who was a party in such suit, may redocket such cause, and, upon motion of such affiant, and after reasonable notice to all parties interested in such cause, shall supply such lost papers or parts thereof by authenticated copies of the same or proof of the contents thereof, and the papers thus supplied shall have the same effect as the papers for which they are substituted would have had.(1863, c. 37, §3; Code 1868, c. 130, §14; 1882, c. 160, §14; Code 1923, c. 130, §14.)
§6. When Books or Papers Deemed Lost.—Where any book or paper is obliterated, defaced or injured so as to be in whole or in part illegible, or is destroyed, or carried away and concealed, or is in the possession or control of armed rebels or a public enemy, it shall be deemed lost for the purposes of this article.(1863, c. 37, §4; Code 1868, c. 130, §15; 1882, c. 160, §15; Code 1923, c. 130, §15.)
§7. Procedure to Prove Contents of Lost a Papers or Records.—Any person desirous of proving the contents of any paper filed in a clerk’s office or anything which was of record in any book therein may, if such paper or book be lost within the meaning of this article, present to the circuit court of the county wherein such paper or book was filed or kept, a petition specifying with reasonable certainty the nature of the paper or record, the contents of which he desires to prove, and what persons may be affected by such proof. Reasonable notice of the time and place of proceeding on such petition shall be given to the parties interested. Such notice may be served as prescribed in sections one and two, article two, chapter fifty-six of this Code. If any person who may be affected by the proof be an infant or insane person, a guardian ad litem shall be appointed to attend to the case on his or her behalf. Whereupon such court shall make an order referring such petition to one of the commissioners of the court, who shall take proof of the contents of such record or paper, and make report of same, with the evidence taken by him, to the court. Such report shall be filed in the office of the clerk of such court at least ten days before it shall be acted upon by the court, when the court may confirm or recommit the same or make any order in relation thereto which may be necessary and proper. If such report be confirmed by the court, it shall be recorded in the book where the original paper was or should have been recorded; or if it was a paper on file in the office, shall be filed away where such paper was or should have been filed; and such report, when finally confirmed and recorded or filed, shall in all cases be prima facie evidence of what is stated therein, and, after ten years from the confirmation of such report, shall be conclusive evidence of what is stated therein.(Code 1849, c. 176, §12; Code 1860, c. 176, §13; 1863, c. 37, §6; Code 1868, c. 130, §17; 1870, c. 85, §17; 1882, c. 160, §17; Code 1923, c. 130, §17.)
Revisers’ Note.—In the fourth sentence, married women are omitted from the provision requiring the appointment of a guardian ad litem. The omission is in accord with the general policy of the revision to remove disabilities from married women, and with §19, art. 3, c. 48. Near the end of the section, the words “report, when finally confirmed and recorded or filed,” are substituted for the words “record or paper, when so made,” the latter phrase, taken literally, being practically meaningless.
§8. Another Procedure; Right to Rehearing.—Such court may, however, without notice or the appointment of a guardian ad litem, proceed on such petition in accordance with the preceding section and with like effect: Provided, That any person whose interest may be affected by the proceedings under this section, or who in any case shall have been proceeded against by publication, or the personal representative of any such, shall have the same rights, as to a rehearing, that may be allowed by law to nonresident defendants in actions at law or suits in equity.(Code 1849, c. 176, §13; Code 1860, c. 176, §14; 1863, c. 37, §7; Code 1868, c. 130, §18; 1870, c. 85, §18; 1882, c. 160, §18; Code 1923, c. 130, §18.)
Revisers’ Note.—The words “in any case” are added after “who,” in the middle of the section, in order to indicate clearly that the language following is not confined to cases proceeded in under this section.
§9. County Clerk May Take Testimony as to Lost Records.—Whenever the book or books in which are required to be recorded deeds, wills or other papers relating to the title or boundaries of lands, have been, or may hereafter be, burned, lost or destroyed, it shall be lawful for the clerk of the county court of the county in which such burning, loss or other destruction took place to take such testimony in relation to such title papers as is hereinafter provided.(1872-3, c. 164, §1; 1883, c. 11, §1; Code 1923, c. 73A, §1.)
Revisers’ Note.—Section 1, c. 73A, Code 1923, provided that a commissioner should be appointed to take the testimony. It is believed that the county clerk, who has custody of the records, should perform this service as a part of his regular official duties. Wherefore §§1, 3-7, 9, 10, c. 73A, Code 1923 (§§9-16 of this article) are amended accordingly and §2, c. 73A, Code 1923, prescribing the oath to be taken by the commissioner, is omitted. After “destroyed,” near the middle of the section, the following words are omitted as superfluous: “by reason of the burning of the clerk’s office of any court, recorder’s or surveyor’s office, or otherwise.” See §6 of this article. Likewise, the words “destroyed or lost,” before “title papers,” are omitted as inaptly used.
§10. Taking of Testimony; Record.—He shall provide a well-bound book at the expense of the county in which to record such testimony as he may take for the purpose aforesaid. Such testimony shall be taken at his office, between the hours of nine o’clock a. m., and five o’clock p. m., and the taking thereof shall be commenced not later than one year and concluded not later than five years after such burning, loss or destruction.(1872-3, c. 164, §3; Code 1923, c. 73A, §3.)
Revisers’ Note.—Section 3, c. 73A, Code 1923, provided that the taking of testimony should be concluded “within the period of five years after the taking of the same shall have commenced,” which made the limitation definite only after the taking of testimony had started, no time being prescribed when it should start. The revised section makes definite both the time of beginning and concluding.
§11. Publication of Notice.—Such clerk shall give notice in some newspaper having a general circulation in his county of the time and place of the commencement of taking such testimony, which notice shall be published for three consecutive weeks prior thereto; a copy of which notice, together with the proof of publication, shall be recorded in the book aforesaid. The cost of publishing such notice shall be paid by the county.(Code 1872-3, c. 164, §4; Code 1923, c. 73A, §4.)
Revisers’ Note.—The words “general circulation” are substituted for “the largest circulation.” The period of publication is reduced from four weeks to three weeks. Proof of publication is required to be recorded with the notice.
§12. Taking and Recording of Testimony; Subjects of Inquiry.—On the day fixed by such notice, such clerk shall take and record in such book the testimony of any credible person. who may appear before him, touching the existence or execution of any deed, will, or other title paper which was recorded in any book burned, lost or destroyed, as aforesaid. The witness shall describe the paper as nearly as may be; and if a deed be the subject of inquiry, the names of the grantor and grantee, the date thereof, and the number of acres called for shall be stated as nearly as the witness can recollect. The witness shall further state as accurately as he is able the locality of the land conveyed; the name of the tract, if it had any; whether it is improved or unimproved, and if improved, who made the improvements; who lived upon the same, and how long; what the calls were with regard to corners, boundaries, or adjacent lands; and anything else which the clerk may deem material to describe the title to the land, or to locate the same. If a will or other title paper than a deed be the subject of inquiry, the witness shall describe the same with the same particularity as in the case of a deed.(1872-3, c. 164, §5; Code 1923, c. 73A, §5.)
Revisers’ Note.—Changes in phraseology but not in substance are made.
§13. Powers of Clerk; Summoning Witnesses; Production of Papers; Administering Oath; False Swearing.—For the purpose of taking such testimony, such clerk shall have authority to summon witnesses and enforce their attendance when desired by any person interested, in like manner as witnesses are compelled to appear before commissioners in chancery; to compel the production before him of any document, paper or book that he may deem pertinent for the purpose of any particular inquiry; and to administer oaths to such witnesses as may be brought before him. Any person who shall wilfully swear falsely before such clerk to any material fact shall be guilty of perjury, and, upon conviction thereof, shall be punished as in other cases of perjury. When the testimony in any case shall have been partly taken by a clerk, and he shall die or his place be otherwise vacated before such testimony is completed, the successor of such clerk may complete the taking of the same with like effect as if it had been completed by the clerk who began to take the same.(1872-3, c. 164, §6; Code 1923, c. 73A, §6.)
Revisers’ Note.—The provision giving the clerk authority to compel the production of documents, papers and books is new. Changes in the phraseology are made.
§14. Fees Payable to Clerk and Witnesses.—The person at whose instance such testimony is taken shall pay to such clerk for his services in such behalf the same fees as are allowed to commissioners in chancery, and to witnesses the same compensation as is allowed to witnesses in other cases. All such fees due the clerk shall be collected by him and paid into the county treasury, and may be collected in the same manner and by the same remedies as costs in a common law action.(1872-3, c. 164, §7; Code 1923, c. 73A, §7.)
Revisers’ Note.—This section is a redraft of §7, c. 73A, Code 1923. Said §7 allowed the clerk “the same fees as commissioners who are authorized to take depositions.” The provisions prescribing the method of collecting fees and requiring them to be paid into the county treasury are new.
§15. Adjournments; Completion and Preservation of Testimony.—Such clerk may adjourn the taking of such testimony from day to day or from time to time, not exceeding thirty days at any one adjournment, until he shall have completed and closed his duties under the provisions of this article, but not continuing the taking thereof beyond the period prescribed in section ten of this article; after which he shall preserve the book or books containing his proceedings among the records of his office. Such clerk shall give certified copies of such depositions, whenever requested by any person to do so, and he shall receive the same compensation therefor as for other certified copies.(1872-3, c. 164, §9; Code 1923, c. 73A, §9.)
Revisers’ Note.—The words “but not continuing the taking thereof beyond the period prescribed in section ten of this article” are new. The concluding words “for other certified copies” are substituted for the words “in other cases.”
§16. Admissibility of Depositions or Copies.—The depositions taken as aforesaid shall be admissible in all suits or controversies in relation to the title or boundaries of lands in such county, whenever such depositions are relevant and no higher or better evidence can be had; and copies of such depositions, when duly certified by the clerk of the county court of such county, shall be admissible in any court the same as the original.(1872-3, c. 164, §10; Code 1923, c. 73A, §10.)
Revisers’ Note.—The word “depositions” is substituted for the word “evidence.”