226 Mo. 174 | Mo. | 1910
Ejectment for 120 acres of land in Chariton county. There was a judgment for the plaintiff and defendant appealed. The petition is in
At the trial the plaintiff traced title from the State to Chariton county and thence to the First National Bank of Kansas City. Then plaintiff offered a deed purporting to be a conveyance of the land from “Walter Johnson, receiver of the First National Bank of Kansas City, Missouri,” to John Ross. To this offer defendant objected “because there is no proof of the authority of Walter Johnson, receiver, to make the deed.” Plaintiff’s counsel replied, “The deed recites the appointment, I think that, is prima facie.” The court overruled the objection and defendant excepted. Plaintiff then read the deed and introduced other deeds bringing the title of Ross down to plaintiff and rested.
I. We will first consider certain objections respondent makes to appellant’s abstract.
a. The motion for new trial and the exception to the overruling of the same are fully set put in the .bill of exceptions; the filing of the motion and the order of the court overruling the same are shown by the record proper. That is just as it should be. Respondent is mistaken in supposing that the record proper should contain the motion or the exception. [Harding v. Bedoll, 202 Mo. l. c. 630.]
b. Respondent also thinks that the abstract does not show that the motion for new trial was filed during the same term the judgment was rendered, but in this also he is mistaken. The abstract shows that the judgment was rendered 14th June, 1907, and it also shows that on the same day the motion for new trial was filed, and by agreement of parties was taken up and considered and was by the court overruled as “appears by record entries made at the term.”
The abstract does not say in so many words that that was the same term, but it does say it was done by the court on the same day and so entered of record. That is quite sufficient. The same is true in regard to the objection that the abstract does not show that leave to file a bill of exceptions was given by the court during the same term. The abstract does show it.
c. The point is also made that the abstract does not set out the contents of the affidavit for appeal.
II. Was it error to strike out all that part of the defendant’s answer relating to the Barry case and sustain plaintiff’s objection to the introduction of that record in evidence? That is the question of chief importance in the case. Respondent contends that the Barry suit amounted only to an action in ejectment and therefore the judgment was no bar to another ejectment suit between the same parties for the same land. It is true a judgment in a mere ejectment suit is not a bar to another suit in ejectment, because ejectment is an action for possession, and a party might not be entitled to possession at one time, yet so entitled at another time. A judgment in an ejectment suit, if for the plaintiff, is simply that he recover possession of the land and damages and rents; if for the defendant, it is that the plaintiff take nothing by his writ and the defendant go free and recover his costs. But if the defendant in ejectment sets up an equitable cross-defense, praying affirmative relief which would bar the plaintiff’s action at law, and the court makes a decree sustaining the equitable defense, that becomes res adjudicada and cannot be litigated again between the same parties or their privies in another
The Act of 1897, now section 650, Revised Statutes 1899, is a statute^ designed especially to quiet titles, to put them at rest, to end all controversy about them. It is in the same spirit as the ancient chancery bill to quiet title, it only enlarges the scope of that bill. In Ball v. Woolfolk, 175 Mo. 278 1. c. 285, the court said: “The proceeding is provided to settle just such adverse claims in order that the parties may have their rights judicially ascertained and set at rest.” There is nothing more adverse to the purpose of that statute than that the parties should be allowed to litigate again the matters that were to be adjudged in that proceeding. Whilst the suit authorized by section 650, Revised Statutes 1899, is a statutory proceeding and therefore
The judgment was not in good form, but it responded to the pleadings, saying it “finds the issues for the defendant” and adjudges that the plaintiff take nothing by his action. What were the issues? The pleadings show. Those issues are found for the defendant. What did the plaintiff seek at the hands of the court? To have the title decreed to be in him; yet the court said he could take nothing and should
Plaintiff also contends that the parties tried the Barry case as if it were an action in ejectment and therefore it became an action in ejectment. In support of this contention attention is called to the fact that the parties called for a jnry and the court so ordered, that the verdict of the jury was in favor of the plaintiff, Barry, but the court set the verdict aside, or refused to be governed by it and rendered its own finding and judgment as above stated. It being as we have already said a cause to be tried like an equity suit, the court could call a jury if it so chose, but was not bound by the jury’s finding. But how could that proceeding have the effect to convert a suit in which
III. It was error to allow the plaintiff to read in evidence the deed from Walter Johnson, receiver, without first showing his authority to make the deed. Respondent contends that there was no objection on that ground when the deed was offered, but he is mistaken on that point. The objection was: “because there is no proof of authority of Walter Johnson, receiver, to make the deed.” The deed was admitted on'the ground that its recitals were prima facie true. Our statute makes the ’recitals in a sheriff’s deed primafacie evidence of their truth, but the statute does not extend to receivers. • The deed recites that he was appointed receiver of the bank by the comptroller of the currency of the United States; if so, the fact is easy of proof, but the court could not take judicial cognizance of that fact. The sale purports to have been made by order of the circuit court of Jackson county; if so it is a judicial sale and is not complete until approved by the court. [23 Am. and Eng. Ency. Law
The point is made that the Danl. Hutchinson mentioned in the deed cannot without proof be presumed to be D. J. Hutchinson the plaintiff. As the cause is to be retried it is unnecessary to consider that point.