27 Mo. 354 | Mo. | 1858
delivered the opinion of the court.
The foundation of this suit is a settlement right under the second section of the act of Congress of March 2d, 1805. The settler was Hardy Ware. In 1805 or ’6, James Smirl, assignee of John Brinley, who was assignee of Hardy Ware, presented the claim to the board of commissioners, who in 1806 rejected it for want of actual inhabitation on the 20th December, 1803. This claim might have been confirmed, as it appears from the evidence, under the third section of the act of June 13, 1812; but, as no steps were taken to effect
The court, at the instance of the plaintiff, gave the following instructions : “ 1. The confirmation of the tract of land in controversy by the act of Congress of 29th April, 1816, was a confirmation to the legal representatives of Hardy Ware. 2. The legal representatives of Hardy Ware are such persons as are shown by the evidence to be legally entitled to the land confirmed by purchase from him, and showing a chain of valid transfers and conveyances from him. 3. Under the Spanish law that prevailed in the territory of Missouri until 1816, it was not necessary, in order to convey real estate, that there should be a deed or other instrument of writing executed by the, seller to the purchaser, but it was competent and legal to sell and convey title to a purchaser by parol without deed or instrument. 4. The claim of Hardy Ware’s representatives presented by William Russell, as agent, to Frederick Bates, recorder of land titles and acting commissioner for settling claims to land in the territory of Missouri, was confirmed by the act of Congress approved 29th April, 1816, and enures to the benefit of such person or persons as are shown to have title to the land acquired by a regular chain of valid transfers from him. 5. If the jury find from the evidence that the deed from Hardy
The court refused to give the following instruction asked by plaintiff: “ 9. The deed from McNair, sheriff of St. Louis district, to Clark divests Smirl or his heirs of all title to the land thereby conveyed; ahd if the jury find that the land described in said deed is the same land claimed by defendant, then neither Smirl nor those claiming undr him are legal representatives of Hardy Ware.”
The defendant then asked the court to instruct as follows: “ 1. Under the Spanish law that prevailed in the territory of Missouri until 1816, it was not necessary, in order to convey real estate, that there should be a deed or other instrument of writing executed to the buyer by the seller; but it was competent and legal to sell and convey title to a purchaser by parol without deed or written instrument, provided the party purchasing took possession of the real estate so bought by him. 2. The claim of Hardy Ware’s legal representatives, presented by William Russell as their agent, to Frederick Bates, recorder of land titles and acting commissioner for settling land claims in the territory of Missouri, was confirmed by the act of Congress of 29th April, 1816, and enures to the benefit of such person or persons as are shown to have had a valid title ■ to the land on that day, and now is the property of such person or persons, or those
The two instructions given by the court relative to the validity of sales of land without writing, under the Spanish government, were contradictory. That given for the plaintiff simply asserted the proposition that sales of land without writing were valid under the Spanish government. The instruction given for the defendant qualified this with the proviso that the party purchasing took possession of the estate bought by him. In the case of Gonzales v. Sanchez, 4 Mart. La. N. S. 457, which is the first reported in Louisiana in relation to this subject, we do not find any qualification of the rule, though it it said in that case that the purchaser
The court erred in permitting to be read, as recorded deeds, the conveyances of Hardy Ware to John Brinley and of Joseph Brinley to James Smirl, admitted to record on the proof of two witnesses under the 27th section of the act concerning conveyances. These deeds were both signed with a cross, and the attestation of the subscribing witness was also signed with a cross. The section ■ referred to requires that the witnesses proving the execution of a deed in order to its'being recorded, shall state on oath that they well knew the signature of the party whose name is subscribed to the deed ; so they shall state that they personally know the person whose name is subscribed to such instrument as a -witness and knew well his signature. It can not be perceived how a deed subscribed with a cross can be proved under this section. There is no handwriting to the instrument, either of the grantor or subscribing witness. It can not then be embraced in the law. The testimony of the witnesses amply proved the execution of the deeds, had it been given in court on the trial after accounting for the absence of the subscribing witness. But the existence of the evidence should have been preserved under the act for perpetuating testimony. To suffer deeds to be proved in an ex parle proceeding by living witnesses who saw them executed, would be a very dangerous practice. The error of admitting these instruments as recorded deeds was not helped by the fact that they were ancient. The genuineness of ancient instruments is a fact to be found by a jury. The court by suffering the instruments to be read as recorded deeds, withdrew from the jury the consideration of the question whether their execution was proved as ancient instruments. Under all the circumstances, they might have been submitted to the jury, who
The copies of the deeds contained in the record, certified from the recorder’s office, were certainly not any evidence whatever of title in James Smirl to the land in controversy. It is remarkable how often this question has arisen, and how little care seems to be taken in the trial of causes to avoid it. We have held that if a document is admissible as evidence for any purpose, it may be read, and it is the duty of the opposite party to call on the court to state and explain to the jury how far and for what purposes it is evidence, and to take care that the party using it obtains no unjust advantage by it; and we .do think the court ought to be very particular in this matter, for they must see how eagerly it is pressed on them, on one pretension, when the object o'f it is to prepossess the minds of the jury by evidence which is not admissible. As it was deemed important to affect William Russell, under whom the plaintiff claims, and who was active in procuring the confirmation, with notice of the existence of these deeds, we do not see any objection to their use for that purpose.
From what has been said, instructions numbered 5 and 6, given for the defendant, were erroneous, as the deeds and conveyances referred to in them were improperly before the jury, and the instructions assume that they were properly in evidence. Had the deeds been properly in evidence to the jury there would have been no objections to them.
The seventh instruction asked by the defendant and refused should have been given. Although the deeds from Hardy Ware to John Brinley and from John Brinley to James C. Smirl were improperly recorded as deeds, yet the 46th section of the act concerning evidence makes deeds, which have been proved or acknowledged but not according to law, impart notice to all persons of the contents of such deeds. The deed from Russell to Allen was executed and recorded after the deeds above referred to had been put upon the record.
We see no objection to the ninth and tenth instructions given for the defendant.
There was no error in refusing the instruction asked by the plaintiff in relation to the effect of the sheriff’s deed to Clark. That deed was not acknowledged in court as the 45th section of the act of 1807 required; it was not effectual as án instrument until it was so acknowledged, and Clark acquired no interest in any land under it. The conveyance of lands by a sheriff on a sale under execution is a statutory power, and the statute must be pursued, otherwise the conveyance can not pass title. We have held that a sheriff’s deed not under seal would not convey a title; so also that a defective execution of a sheriff’s deed could not be aided by a court of equity. It seems that the party’s remedy in such a case would be under the 49th section of the act of 1807 concerning the practice at law. (Ter. Laws, p. 105.)
The terms of this confirmation are not like any that have fallen under our observation. The confirmation is to “Hardy Ware’s legal representatives it was filed, as has been stated, under the seventh section of the act of the 13th June, 1812, by William Russell, agent for the claimant, on the 12th November, 1812. Now Allen, the plaintiff, claims under a deed executed by Hardy Ware long after the claim was filed. As the claim was confirmed to Ware’s legal representatives, must not those representatives have existed at the time of filing the same ? Would one be a representative who obtained a deed from him in 1815 ? The act confirming the claim, it is true, did not pass until the 29th April, 1816 ; but must it not relate back and affect those only who were the representatives of Ware at the time of filing it ? The claim itself is founded on the pretension that at the date of
As the case is made out by this record, Allen can derive no advantage from the deed of the sheriff to Clark. He shows no conveyance from Clark. Clark himself, as has been shown, acquired no title by that deed; there is, therefore, no ground for any estoppel. It is besides the well established doctrine of this court that a vendee may deny the title of his vendor, and protect himself by an adverse title acquired from another. - ,
As the point in relation to the enurement of the confirmation was not made on the trial of the cause, and as it may be met by evidence, we are of the opinion that justice would be subserved by another trial. Both parties acted on the supposition, and their instructions assumed, that Ware might by a conveyance subsequent to the time of filing the claim for confirmation pass a title to a bona fide purchaser without notice of the previous conveyances by him.