45 Mo. 412 | Mo. | 1870
delivered the opinion of the court.
This is an ejectment suit brought to recover possession of a farm in Daviess county of some three hundred and eighty acres, formed from parts of sections twelve and thirteen, township forty-nine.
The plaintiff deduces title from his deceased brother, William P. Brown, under a purchase from the latter’s administrator in October, 1855, for the consideration of $2,025. The case shows that the plaintiff, soon after the purchase, went into possession, and thenceforward continued to hold and enjoy the property as the owner until March, 1864, when the defendant, in the plaintiff’s absence in California, got into possession, and now claims to hold the estate under a title alleged to have been acquired from the plaintiff himself through a judicial sale.
The defendant, by his answer, disclaims as to forty acres, pleads the general issue as to part, and sets up title in himself as to the residue under the alleged judicial sale. The plaintiff recovered judgment in the Circuit Court for all but the forty acres. The judgment was affirmed in the District Court, and the defendant brings the case here by appeal. At the trial in the Circuit Court, the defendant, in support of the issue on his part, read in evidence a deed executed by the sheriff of Daviess county, November 4, 1863, which purports to convey to him all the plaintiff’s right, title, and interest in and to the farm in question, except the disclaimed forty acres, for the consideration of $280. The deed recites a judgment rendered by the Probate Court of Daviess county, in favor of one Joab Woodruff, against the plaintiff and one Oxford. The sale and conveyance were
The deed, however, was admissible in evidence as well under the general issue, as showing defect of title in the plaintiff, as under the special averments. The case stands, therefore, as regards the pleadings, as though the defendant had pleaded the deed and the title supposed to have been acquired under it as a defense to the entire action; or, omitting this, had rested his defense solely upon the general issue. And this seems to have been the view taken by the defendant’s counsel;. for it is insisted that the’sheriff’s deed cut up the plaintiff’s case, root and branch, destroying the entire cause of action. One point made by the defendant in this court is thus expressed: “The court (below) erred in rendering judgment for the plaintiff, and not for the defendant, after the defendant had introduced the sheriff’s deed for the same land — the plaintiff not having introduced any evidence to rebut the prima facie case established thereby for the defendant.” It is thus clear that the sheriff’s deed was relied upon as a defense to the entire action, and not as a defense to a part of it merely. In other words, the defendant claimed title through the plaintiff to the whole subject-matter of the litigation, founding himself upon the sheriff’s deed. The defendant thus stands claiming title through and from the plaintiff, and rests upon that title as a ground of defense covering the whole case except the disclaimed forty acres, and thus admits his antagonist’s title at the date of the sheriff’s deed. There is, therefore, no necessity of inquiring into the state of the plaintiff’s paper title antece-dently to the sheriff’s sale.
It is an established principle that where both litigants claim
The defendant’s fifth and sixth instructions direct the jury, for substance, to find for the defendant — the fifth as to all the land, and the sixth as to all but sixty acres. These instructions were refused by the court, and properly. They are based upon two assumptions of law and one of fact: 1. That no prima facie case was made for the plaintiff. This point has already been sufficiently considered. So much was admitted by the character of the defense. 2. That the sheriff’s deed operated, prima facie, to vest the plaintiff’s title in the defendant. 3. That there was no evidence from which the jury was authorized to find facts invalidating the deed. This assumption -was unwarranted.
It appears from the record that evidence was submitted to the . jury tending to show that Oxford, one of the joint defendants in the judgment recited in the sheriff’s deed, and upon which
In a word, there was evidence tending to show that the judgment was rendered without jurisdiction or authority. The weight of this testimony was properly left to the consideration of the jury. In the argument no effort was made to defend these instructions on this third ground, and it is not necessary to pursue the subject further. The whole labor of the argument in behalf of the defendant was directed to the supposed insufficiency of the plaintiff’s paper title — a point rendered immaterial, as wTe have seen, by the character of the defense itself, since it deduced the defendant’s supposed title from the plaintiff.
I discover, upon a review of the whole case, no sufficient reason for disturbing the judgment of the court belcw, as being .either against the law or the evident justice of the case. I am, therefore, of the opinion that the judgment ought to be affirmed.