Section 16.21 Statements Concerning Boundaries or Interests in Real Property; Community Reputation Regarding Matters of Public Interest

• Library: Evidence 2017

G. (§16.21) Statements Concerning Boundaries or Interests in Real Property; Community Reputation Regarding Matters of Public Interest

These two exceptions are dealt with together because they are quite similar and have been used in the Missouri cases for similar purposes. Both require as a foundation that the statements sought to be admitted have come from persons now deceased. The differences are two:

1. The source of the evidence

2. The subject matter that may be admitted under the exception

The first exception relates only to boundaries and interests in real property. It allows the admission of a statement from an individual who had knowledge of the boundaries or the interest in the property made at a time when the individual had no motive to misrepresent. Sinopole v. Morris, 743 S.W.2d 81, 86 (Mo. App. E.D. 1987). In Sinopole, for example, the plaintiff sought to prove the grantor’s intent as to the meaning of an ambiguous provision in a deed. There was, however, no evidence that the grantor was dead (she was, in fact, a party to the lawsuit), and the evidence was properly refused. Id. at 86. See also statutory provisions creating an exception to the hearsay rule when records of documents are involved. Section 490.360, RSMo 2016.

Reputation evidence, on the other hand, depends on testimony of reputation about the fact in the community as a whole for its admission. Baugh v. Grigsby, 286 S.W.2d 798 (Mo. 1956). As Wigmore put it so colorfully, to be admitted under the latter exception, the proper question is “‘What have you heard old men, now deceased, say as to the reputation on this subject?’” Id. at 802 (quoting V John Henry Wigmore, Wigmore on Evidence §§ 1583–1584 (Chadbourn rev. 1974)). Of course, nowadays the question does...