Alexander v. Hickox, 34 Mo. 496

Alexander v. Hickox

34 Mo. 496 | Mo. | 1864

Bates, Judge,

delivered the opinion of the court.

This is an action in the nature of ejectment for a lot in the city of St. Louis. Both parties claim under Thomas Barnett. In 1832, Barnett by deed conveyed the lot to Orme and Thomas; afterwards the name of Thomas was erased from the deed; and still, subsequently, Thomas conveyed his interest in the lot to Orme, who conveyed the whole to the-plaintiffs.

In 1846, a sheriff’s sale of Barnett’s interest in the lot. was made to McDonald, who conveyed to Willi, one of the-defendants.

*500At the request of the plaintiffs the court instructed the jury:

“ That the sale of the sheriff of St. Louis county to James McDonald, and the deed of said sheriff to said McDonald for the land so sold, given in evidence by defendants, conveyed no title to said McDonald for any portion of the land described in the deed of Thomas Barnett, dated the 23d day of May, 1832, given in evidence by plaintiffs.”

There was no error in this instruction. Barnett’s title having passed by his deed to Orme and Thomas, no subsequent alteration of the deed (by whomsoever made or with whatever purpose) could revest Barnett with the title, and there was, therefore, nothing upon which the sheriff’s deed could operate. (Tibeau v. Tibeau, 19 Mo. 81.)

2. The defendant also offered in evidence a deed of the register of lands, upon a sale of the lot made for taxes. Objection having been made to the uncertainty of the description, the defendant gave the testimony of a witness to explain the description, and upon objection made by the plaintiff the deed was still rejected.

The deed was a printed form, obviously intended for the conveyance of country x lands. It contained columns with printed headings, under which were written words of description as follows:

The testimony 'was as follows :

One Denis testified, “ I am a practical surveyor; I know the location of the land in suit; I surveyed the land adjoining it formerly owned by Swon, now the property of Walker.” The deed from the register in the State of Missouri to Willi being shown witness, he states, u I could not locate the land from the description in this deed j I would need more *501information to locate it; I would go to the corner of Sixth street and Washington avenue. Lot No. 1-26 is on the south side of Washington avenue ; the land mentioned in the petition is in the same block; I would, from the register’s deed, locate the land in question at the corner of Sixth street and Washington avenue. The lot referred to as belonging to Walker adjoins it on the west.” On cross-examination the witness stated, that “ if the printed headings in the deed of the State register are used as a part of the deed, there is no sense in it.”

If the description contained in the deed were such as could be explained by parol testimony, it is obvious that the testimony of this witness did not at all give it any greater certainty. He truly said, that if the printed headings in the deed are used as a part of the deed, there is no sense in it; and it is equally true that if the printed headings be entirely disregarded, there is no sense in it. There is, in truth, no description at all of any lot whatever.

The court properly rejected the deed.

Judgment affirmed.

Judges Bay and Dryden concur.