65 Mo. 189 | Mo. | 1877
This was an act of ejectment, in the Montgomery County Circuit Court, for the recovery of the possession of one hundred and forty-four ^ acres of land in said county. The petition is in usual form, and the answer contains a general denial. On the trial defendánts obtained judgment, and plaintiff brings the case here by writ of error. There was no dispute as to plaintiff having once had the legal title to the land sued for; but defendants claimed that they had purchased his title at a sale made by the sheriff of Montgomery county, under an order made by the county court of said county, directing it to be sold under a mortgage executed by, plaintiff to secure the payment of school money, which had been loaned to plaintiff
The defendants introduced evidence on the trial showing that all the records of Montgomery county had been burned in October, 1864, and also introduced as a witness Earrow, who testified that he had been presiding justice of the county court of that county from the year 1857 to 1863, and that plaintiff had borrowed money belonging to different school townships in the year 1857 or 1858; that in 1860 or 1861 the plaintiff was cited to appear and give additional security for the money so borrowed; that he appeared, and complied by giving a mortgage on real estate, and that in 1862 the land so mortgaged was sold
There is nothing in the first ground relied upon, it being settled that defendant in ejectment, may, under the general issue, show title in himself by proof that he purchased the property at a sheriff’s sale under a judgment and execution against the plaintiff, 45 Mo. 416; 38 Mo. 302.
The objection to the deed offered in evidence is disposed of by the case of Warner v. Sharp, 53 Mo. 599. In case the objection to the deed was that ft did n(ft recite what court made the order directing a sale, nor the date of the order. The deed in the case at bar is more specific in this, that it gives the exact date of the order. The recitals contained in the deed show that the sale in question was made by virtue of an order, and that the order was made by some court assuming to have the right to make an order for the sale of land mortgaged to secure the
The citation which was read in evidence, although not properly admitted as evidence, having been excluded from consideration by instruction, does not constitute sufficient cause for reversal, as the case was tried by the court without the intervention of a jury, and because, even if admitted as evidence, it could have had no bearing on the ease in the view we take of it. Nor is their sufficient ground to distnrb the judgment of the court on the weight of evidence as to the execution of the mortgage. There was evidence on both sides, and in -such case it has been again and again held that this coui’t would not interfere.
Nor is there anything in the reason alleged in the motion for a new trial—-that since the trial plaintiff had discovered new evidence, a portion of which was written— that justifies interference with the action of the trial court. The character of the evidence is not disclosed, the nature of it is not stated, no witness is named, nor is the evidence stated to be important, but simply alleged to be “ new and more communicative in its character.” The discretion of the court was not unsoundly exercised in overruling the motion on that ground. Judgment affirmed with the concurrence of the other Judges.
Aeeirmed.