8 Mo. App. 467 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is an action of ejectment, to recover a tract of land included in United States survey 2541, made under New Madrid certificate 164, in the name of John Brooks. The parcel of land claimed in this action is a tract fronting two hundred and ninety feet on Grand Avenue in St. Louis,
Both parties claim under Charles Lucas. Lucas conveyed' to Tanner, under whom plaintiffs claim. In the ejectment of Miller v. Dunn, Miller claimed under Mrs. Lucas, to-whom, Under the name of Sarah Graham, Lucas had conveyed the property in contemplation of marriage. Miller,' in that suit, introduced a deed from Mrs. Lucas to Gillespie, and derived titleto himself through Gillespie. Though Dunn had been in possession for more than twenty years» before that action, claiming under Charles Lucas, yet the statute was no bar, as the legal title had not passed out of-the United States until the act of Congress of 1864, and; the suit was begun in 1872. In the present action, the deed of Mrs. Lucas to Gillespie was not introduced. De-. fendant showed a legal title in Mrs. Lucas, merely as an-•outstanding title in a stranger, to show a break in the chain of plaintiff’s title at that point. The theory of plaintiff in the present case is that, in the absence of evidence to the contrary, a deed from Mrs. Lucas must now be presumed, to bridge over the gap in the paper title. Defendant introduced the record of the former recovery, and claims that it is a termination of the presumptions in plaintiff’s favor growing out of long possession. He also claims that it is' a bar.
This is sufficient as an introductory statement. The ■ points upon which defendant relies will be understood from-what is further said in the course of the opinion.
It is contended by defendant that the former recovery is a bar. In view of the recent decision of the Supreme Court in Kimmel v. Benna, 70 Mo. 52, it must betaken as settled that a judgment in ejectment is no bar in Missouri, even" though the titles and defences are precisely the same as they
It is, however, incumbent on plaintiff, in this action, to show such title in himself as will warrant a recovery in ejectment. He claims that he has done so.-
• In 1801, seven hundred and nine arpens of land in New Madrid County were confirmed to the legal representatives of John Brooks. Brooks conveyed to Charles. Lucas. Lucas applied for relief under the New Madrid Act, claiming the fee of the land, and that it was injured by earthquake ; and in November, 1816, he received from the recorder of land-titles New Madrid certificate-164, entitling-him to locate the like quantity (seven hundred and nine arpens) ofland. The first deed offered in evidence by plaintiff is a certified copy of a deed recorded in St. Louis County. This deed is dated January 1, 1817, and purports to-convey to James Tanner, his heirs and assigns, “ a certain tract or parcel ofland of seven hundred and nine arpens, and the original certificate, of which the following is a copy.” . Then, follows the New Madrid certificate to the legal representatives of John Brooks, entitling him to locate seven hundred and nine arpens in the Territory of Missouri. Then follows: the habendum clause, to James Tanner and his heirs, etc., “ whom I do hereby authorize to locate, or cause to be located, according to law, the said quantity of seven hundred
The Territorial law of 1804, in force at the time, provides that “ all conveyances made and executed within the district, of or concerning lands, or whereby the same may be affected, shall be acknowledged * * * and recorded in the recorder’s office in the district where the lands and hereditaments are tying or being.” 1 Ter. Laws, 46, sect. 8. This New Madrid certificate might never be located. It might have been returned, and the New Madrid lands kept. It might have been located anywhere in Missouri, or in Arkansas, which was then within the Missouri Territory. It was, however, afterwards located in St. Louis County ; and it is manifestly an instrument by which land may be affected. It is, therefore, an instrument which may be acknowledged, and an instrument which may be recorded. The case is not like that of a certified copy of the record of Spanish concession in Patterson v. Fagan, 38 Mo. 83. That is a paper from the Spanish government, not acknowledged under the acts concerning conveyances, and which gave no right, except to a permissive possession under the former government. The evidence of cultivation and possession, and not the fact of a .Spanish concession, was what gave rights under the act of 1812. A power of attorney must be recorded in the county in which the land sold under it is situated; at the time that it is recorded, however, it may not be an instrument affecting land in that county. It may never affect land in that county. Judge Napton, in considering sect. 24 of the act concerning conveyances (Wag. Stats. 277, sect. 24), in Muldrow v. Robinson, 58 Mo. 345, construes the words, “ by which any real estate
Plaintiff put in evidence an application by McKnight and Brady, dated January 25, 1817, prior to the record of the conveyance by Lucas to Tanner, to have the certificate located on lands described in the application. The description, according to the testimony of Surveyor Cozzens, would cover the land surveyed, and as much again.
Against the objection of defendant, plaintiff put in evidence a certified copy from the land-office at Washington of a relinquishment by Charles Lucas, to the United States, of the New Madrid land, dated November 5, 1816. As a copy of a deed, this was perhaps not competent. It was not a copy from the records of the county where the laud lay. Neither was a formal relinquishment necessary; nor did
Plaintiff put in evidence a certified copy of a deed from Tanner to McKnight and Brady, dated January 13, 1817, recorded the folloAving November in St. Louis County. It was also shown that McKnight and Brady entered the land-in controversy as the legal representatives-of John Brooks under New Madrid certificate 164. The entry and notice of location Avas duly filed Avith the surveyor-general of the Territory, and the-land Avas surveyed for the legal representatives of John Brooks, by the deputy-surveyor, in March, 1818. Cozzens testifies that the survey covered the
The title of Langhatn is shown to have been acquired by Brown Cozzens, who sold to Abbott in 1834. From Abbott, the title is regularly derived by mesne convejomces to Gay, who acquired in 1840, and who, the next year, fenced the-land acquired. Page acquired from Gay, through McPherson, by deeds in evidence, and sold the lots in question, being part of the larger tract acquired by him, to John Dunn,, in 1852. John Dunn was the father of plaintiff, who acquired-under his will. Dunn, the father, took possession at once, and at once fenced and put up valuable improvements. Valuable additional improvements have been put up by the soil.. And father and son were successively and continuously in possession until dispossessed by defendant in 1876. Thus, from 1840 to 1876 there was actual possession of these particular-lots under Charles Lucas ; and from 1808 to 1872 nothing is heard of Sarah Lucas, formerly Sarah Graham, in connection with the land. She made no claim under the New Madrid Act or otherwise. The only reasonable explanation of this state of facts is that she had no claim to make ; and a reconveyance from her to Charles Lucas before marriage,, or a conveyance to Charles Lucas by some persou to whom the land was conveyed by her, may be supposed. We think that the trial court was warranted in presuming such a grant. The deed from Sarah Lucas to Gillespie, dated in-1821, was not offered in evidence in the present case. From the proceedings on the former trial in ejectment, put in by defendant, we see the date of the deed from Sarah Lucas to-Gillespie, and that it was introduced there.
We do not regard the former recovery in ejectment as a. termination of the presumptions arising from a prior posséssion. There was no acquiescence in the possession acquired by a former recovery; and the prior possession was not a mere naked possession, as in Nelson v. Brodhach, 44 Mo.
It is contended by appellant that, as the deed from Lang-ham by the sheriff to Brown Cozzens does not recite that the sale was made in term-time of the Circuit Court, and does not recite where the sale was made, the deed is absolutely void. The act of 1835 (Rev. Stats. 1835, p. 259, sect. 45) required that the sheriff's deed should recite the names of parties, date, date of judgment, particulars recited in the execution, description of the property, and time, place, and manner of sale. But the sale in question here was made in 1833, and, therefore, apparently under the act of 1825. Rev. Stats. 1825, p. 369, sect. 20. The act of 1825 requires the deed of the sheriff to recité the execution, advertisement, purchase, and consideration. This deed contains these recitals. The statute of 1825 not requiring a recital of the time, place, and manner of sale, the decision
The objection that the land conveyed by some of the deeds in plaintiff’s chain of title is described as being in the Coontz tract, whereas it is in the Brooks tract, is of no-force. The trier of the fact found that the land described in these deeds is, in fact, in the Brooks survey. The land, is described in these deeds by metes and bounds, and the-testimony of Surveyor Cozzens places the land in these deeds and the lots in controversy within these bounds. There is, we think, no room for doubt as to the identity of property in these deeds and the land intended to be conveyed.
It is not necessary to set out or to comment upon the-instructions given and refused. The cause was tried by the court, a jury being waived ; and we are clear that the-, -finding was for the right party, and that it should not be disturbed.
. The judgment is affirmed.