Joeckel v. Easton

11 Mo. 118 | Mo. | 1847

Scott, J.,

delivered the opinion of the Court.

The question in this case turns on the effect of the recital in the deed from James Smith to Lewis and Day, under whom the defendant claims. There is no doubt of the correctness of the proposition of the plaintiff, that a recital in a deed of a fact will generally conclude both the grantor and his privies, whether in blood, or in estate, or in law, and this whether the deed be indented, or a deed poll. The acceptance of a deed will create an estoppel against the grantee and those claiming under him. Such estoppels are founded on principles of legal policy, and this would seem to be the test of their efficacy. The cases on this subject are numerous, and there is no want of harmony among them. The principle on which estoppels created by mere recitals are binding, is the same as that which makes the admissions of a party evidence. .The declarations of a grantor made at the time of the execution of a deed, are evidence against his grantee and those claiming under him. Judge Cowen says? the mere admissibility of the recital will depend upon the same principle as the admissibility of a declaration of the person executing the reciting deed. Hence in general, in order to determine whether a recital is evidence in a given case against a party, we have only to ascertain whether an acknowledgment or confession of the person who executed the deed would be competent. Notes on Philips, 3 vol., 1236. What is the nature of the recital relied on in this case.? It is that the land in question was granted to James Smith by the United States, that is, in effect, that he was the owner of the land. This Court has held that a declaration by the owner of a chattel whilst he was in the possession of it, that he was the owner, was no evidence of his ownership. Turner vs. Belden, 10 Mo. R., 737. All the cases on this subject within the reach, of the court cited by the plaintiff have been examined, and they are those in which the recital is of a fact which injuriously affects the interests of the grantor in the deed or at least of matters which in no way make in his favor. This observation is not intended to apply to that class of cases which hold, that in a controversy between two grantees under the same grantor, one is not precluded from showing an outstanding title adverse to that of the grantor. It would, be strange if a party by estoppels could create evidence for himself. In the case of Hayne vs. Maltby, 3 Term Rep., 438, it appears that the defendant had purchased the privilege of using a certain patent machine from the pretended patentee. He had entered into certain covenants reciting the right of the plaintiffs to the patent and obliging himself to employ the machine with certain restrictions. This was an action for a breach of some of those covenants. The defendant among other things pleaded that the plaintiff had no right. The plaintiff demurred on the ground that the defendant was estopped by his deed from putting that matter in issue. Lord Kenyon said, now in point of conscience it is impossible that two persons can entertain different ideas upon the subject. But it is said that though conscience fails, the defendant is estopped in point of law from saying that the plaintiffs had no privilege to confer. The doctrine of estoppel is not applicable here.

This recital then being of such a character as not to create an estoppel, the case must be classed with that of Maeklot vs. Dubreuil, 9 Mo. Rep., in which it was held that in a contest between two alienees under the same alienor, one is not precluded from shewing an outstanding title adverse to that of the grantor.

Something was said in the argument in relation to the encouragement that would be given to fraud, if Lewis and Day, and those claiming under them, they being affected with notice, were permitted to lake from James Smith, after he had made a previous conveyance, a title deed, enter on the land under that deed, and afterwards disclaim that title. So far as this argument is based on the impolicy of the thing, it has been already answered. There is no evidence of actual fraud or of any design to commit one. The land in New Madrid was conveyed to Easton; that located in lieu of it, to Lewis and Day; and when we consider the multiplicity of questions that have grown out of the act of Congress, for the relief of the sufferers in New Madrid by the earthquakes, and the variety of opinion in relation to them, we should be slow in imputing fraud to men from the mere circumstance of their dealing in titles under that act.

The fact that the lots in New Madrid were conveyed to Easton after the certificate of the recorder, that they were injured by earthquakes, cannot affect his title. The mere taking a certificate did not compel a party to locate it, nor did it divest him of his right to his injured land; after taking a certificate he might if he pleased, destroy or return it and retain his land in New Madrid. The title to the injured land not being divested by merely taking a certificate of location, a conveyance of it by the owner is valid, and the patent being made to Smith or his legal representatives, and Easton being that representative as supposed in the instruction, the title enured to him according to the late decisions of this Court. '

We do not see the relevancy of the abstract from the recorder’s book of relinquishments. According to the case of Wear & Hickman vs. Bryant, 5 Mo. R., no formal relinquishment was necessary to confer title. On the location of the certificate, the title to the land relinquished passed to the United States. The locator by merely making the location and relinquishment, acquires no interest for himself, either legal or equitable.

The other Judges concurring,

the judgmtent is reversed and the cause remanded.