Section 16.38 Ancient Documents

• Library: Evidence 2017

C. (§16.38) Ancient Documents

The ancient documents exception addresses a problem of proving facts contained in documents that cannot be authenticated or whose statements cannot be offered by a witness because the author of the document or witnesses to its execution are deceased. This exception usually revolves around proof of facts in instruments affecting title to real estate. But see Anderson v. Cole, 136 S.W. 395 (Mo. 1911) (a receipt for consideration paid for land was admissible under this exception because there is no substantive difference between the acknowledgment of payment of consideration in a deed and in a separate piece of paper). Given the prevalence of modern recording statutes, the attention to the recording of documents affecting title, title insurance, and modern lending practices that fuel the necessity for accurate title records, the use of this exception appears to be receding into a relic of the past.

A modern-day statutory exception is found in § 490.360, RSMo 2016, which provides that a certified copy of a recorded deed more than ten years old is prima facie evidence of its execution, its genuineness, and the time of its recording. An example of the application of the statute is found in Simpson v. Island View Sales Corp., 540 S.W.2d 624 (Mo. App. S.D. 1976). In Simpson, the grantor testified that the deed was forged. The court held that the statute was sufficient to meet the plaintiff’s burden of proof that the deed was genuine and that the trial court was free to disbelieve the defendant’s testimony. See also Blackburn v. Spence, 384 S.W.2d 535, 539 (Mo. 1964) (allegation of forgery).

To the extent that counsel needs to prove facts in an unrecorded deed or other document, the common-law hearsay exception for ancient documents is still viable. In Davis v. Wood, 61 S.W. 695 (Mo. 1901), the Supreme Court of Missouri held that there are five requirements for admission of an ancient document under this exception:

1. As might be expected, the document must be old—30 years is the usual rule of thumb, but Missouri cases have admitted documents that were a relatively spry 28 years old at the time of trial. Anderson, 136 S.W. 395. The age required for admission under this exception is an arbitrary number based on the premise that when a document is at least 30 years old, it can be assumed that the witnesses who could otherwise testify as to its preparation and contents are dead. Life expectancies are much longer these days, but the...