Heirs of Strickland v. Heirs of McCormick

14 Mo. 166 | Mo. | 1851

Ryland, J.,

delivered the opinion of the court.

From the above very full and lucid statement of the facts in this case, it will become necessary for this court to look into the instructions given for the plaintiffs, and also those refused on the part'of the defendants.

We insert the first instruction given for the plaintiff. It is as follows:

“If the jury shall find from the evidence, that Michael Regan made a deed to Jeduthan Kendall for the land in suit, and Kendall’s heirs made a deed for the same to James McCormick, then the heirs of James McCormick, the plaintiffs in this action, are entitled to recover.”

This is the only one of which the plaintiffs in error complain. The plaintiffs in error object to the instruction as being too general. We find from the evidence preserved in the bill of exceptions testimony amply sufficient to warrant this instruction. The land was originally granted to Regan; it was confirmed to him by the agency of his assignee, Jeduthan Kendall; Kendall was the claimant before the different boards of commissioners and recorder of land titles ; Kendall filed the papers before the recorder of land titles; the confirmation was made through his exertions, by his acts, and must'be for his benefit. But without noticing this point in the case, the instruction was properly given ; the testimony justified the court in giving the instruction, and if the defendants complained of its generality, they might have narrowed it down, if they thought it necessary, by asking instructions for that purpose. We find no error therefore in any instructions given for the plaintiffs.

There now remains for us to notice those refused on the part' of the defendants below.

The first is, “that the paper purporting to be a deed from' Michael Regan to J. Kendall must be shown to have been properly executed, acknowledged and recorded before the jury can consider it a deed or one link in the plaintiffs chain of title.” There is no error in refusing this instruction. The facts proved in this case in the court below, did not warrant this instruction. It was a good deed at common law, as between the parties thereto, acknowledgment and recording did not increase its force or validity, and the same doctrine prevails in a case between the grantee and the mere trespasser; had the defendants been subsequent purchasers without notice, then such a fact would warrant the court in giving the instruction; but there was no such proof in this case as required the court to give this instruction.

The 10th instruction embodies a correct general rule, and where the evidence will warrant it, such an instruction should have been given; but in this#case there was no such evidence; the witness, Johnston, expressly stated that he formed his opinion as to the genuineness from his knowledge of the handwriting — not from comparing it with any other signature ; there was no foundation for the asking of this instruction, and the merely stating abstract rules or principles of law in instructions, without any evidence to base them upon, is improper and erroneous. There is nothing in the 11th instruction — it is>not even relied on as error by the plaintiffs in error; we therefore pass it by, and the addition by the court of the word ^willfully” to the 7th instruction was not at all improper. We have now disposed of the instructions and the supposed errors relied on by the plaintiffs in error.

We have examined the evidence in this case, and must say that the proof of a deed so old as the one from Regan to Kendall, has been made out most surprisingly; there is scarcely any instrument of such age proved so forcibly and so satisfactorily in our courts. The credibility of the witnesses making this proof was properly submitted to the jury, and they have found for the deed. We feel no ways inclined to disturb their finding. Upon the whole case, then, we find nothing requiring the interference of this court.

The judgment of the circuit court is therefore affirmed.