Butler v. Davis

5 Neb. 521 | Neb. | 1877

Maxwell, J.

John IT. Galligher entered at the United States land office at Omaha, Nebraska, the south half of the northwest quarter and -the north half of the southwest quarter of section thirty-five, in township fifteen, north of range twelve east. The date of the entry does not appear, but a patent was issued therefor to Galligher on the second day of July, 1860.

On the 13th day of May, 1857, Galligher, in Douglas county, Nebraska, executed and delivered to A. M. Patton, of the State of Kentucky, a warranty deed for the tracts of land above described; which deed, on the same day, was filed for record in the office of the register of deeds of Douglas county. In the year 1869, the heirs of Patton sold and conveyed the premises in question to H. O. Jones, who, soon thereafter, sold and conveyed the same to Elizabeth Davis, who is now in possession.

On the 17th day of April, 1860, the plaintiff commenced an action in the district court of Douglas county, against John IT. Galligher, to recover the sum of $698.14 and interest thereon, and the lands above described were attached as the property of Galligher. In November of that year, judgment was recovered for the amount of the claim, and the lands in question ordered sold to satisfy the same. The lands were sold under the judgment in the year 1861, to the plaintiff, who received a deed therefor from the sheriff of Douglas county. The plaintiff paid the taxes on the land until the year 1869.

The grounds on which the plaintiff seeks to recover are purely technical. It is clearly shown that Galligher entered the lands in controversy, and that they are situated in Douglas county; it also appears that on the 13th day of May, 1857, he conveyed the same, by warranty deed, to A. M. Patton. It is true, there is no designation in the deed of the county or state in which the lands are situated; but the deed was signed and acknowledged in Douglas county, and immediately thereafter filed for record in the office of the register of deeds of that county; and the defendants are in possession of the premises, claiming possession to the same under the deed in question.

In Harding v. Strong, 42 Ill., 149, the deed offered in evidence described the premises intended to be conveyed as lot five, in block one, in Haley’s addition to the city of Monmouth, without stating what state, the court say: “ It is first insisted that the court cannot know that the lot in controversy is in the city of Monmouth, Illinois. The court will take notice that the city of Monmouth is in "Warren county, in this state. And when the deed was read in evidence, describing a tract of land as lot five, in block one, in Haley’s addition to the city of Monmouth, the presumption would be that it was in Monmouth in this state.”

The plaintiff introduced in evidence a duly certified copy of the patent from the United States to Galligher, for the lands in controversy. It is but reasonable to suppose that Galligher’s deed to Patton was intended to convey these lands, and we must presume such to have been the intention. The deed from Galligher to Patton was, therefore, properly admitted in evidence.

This is decisive of the case. No attempt has been made to impeach the deed from Galligher to Patton. Galligher had no title to the premises, as shown by the records of Douglas county, at the time the attachment was levied. The plaintiff, therefore, acquired no title from the sale under the judgment.

In an action of this kind, the plaintiff must recover on the strength of his own title; and it will not do for him to rely upon the weakness of the title of his adversary, unless he can show a superior right in himself.

Objections were made to thé testimony of certain witnesses on the trial. In the view we take of the case, their testimony was not material, and the plaintiff was not injured thereby.

The judgment of the district court is clearly right and must be affirmed.

Judgment affirmed.