5 Mo. 6 | Mo. | 1837
Opinion of
Wells brought a bill in chancery against Miller et ah, seeking to set up a bond given by Miller and others to Wells, which the complainant alleges was lost. The bill charges, that about the year 1819, the defendant, John Miller, Elias Rector, (since dead) and others, laid off a town, in the present county of Marion, called Wyaconda; that they had a sale of the lots in that year, and that the complainant became the purchaser; that to secure the purchase money to the defendant and others, the complainant gave his notes payable in six, twelve,, and eighteen months, and afterwards paid the same to one of the said owners, to whom the others had assigned the same; that the said owners gave to the complainant their bond oinding themselves to make a title when the purchase money was paid. The bill charges, that in 1821 or 1822, the complainant enclosed in a letter, written to said Rector, the bond for the purpose of enabling said Rector to see the numbers of the lots to which the complainant was entitled to a title, with a request to Rector to make the deeds according to the bond. But that Rector nor any one of the owners made to him the deed. The bill also charges that the bond was lost, and that diligent search had been made for the same, and it could not be found, whereby the complainant could not sue at law. As io some of the defendants, and Miller among them, answers were put in; as to others, the bill was taken as confessed; the bill was filed in 1831, The answers admit every thing in the bill charged, except the demand
On the hearing of the cause, the court made a decree against Miller, and dismissed the bill as to the administrator of Rector, on the ground that the administrator had no assets, &c.
The first error assigned is, that the court erred in eluding the evidence offered by the defendant, Miller, show that he had title to the lots when he made a tender of title to Wells. The evidence on this point is, that the land, of which these town lots were a part, was holden by a New Madrid location, originally confirmed to James Currin. That Currin made a deed of the land in New Madrid, after the earthquakes, to one Thomas Fletcher, with a power to locate the same for his use benefit. This deed from Currin to Fletcher was given in evidence by the defendant, Miller; he then offered deed from Fletcher and wife to Miller and others. This deed was objected to, because not proved ;#the court rejected the deed for want of proof. The deed is dated July 29, 1818. The deed was acknowledged before the clerk the cii’cuit.court of St. Louis county, the 30th of July, 1818, certified under the hand and official seal of the clerk. The defendant then offered another deed from Fletcher and wife to Miller and others, for the land, dated October, 1820, the acknowledgment of which was taken before a justice of the eounty court of New Madrid coun.ty, on the 17th of Oct. 1822, which deed was recorded in Ralls county, where the land lay, and in June 5th, 1827, was recorded. There was no (5ther proof of the due execution of the deed except the acknowl-
The next error assigned is, that the court erred in de-for the complainant on the evidence that his ti-tie bond was lost. The evidence on this is, that the bond enclosed in a letter by the complainant to Rector, and that after the death of Rector, the complainant applied to William Rectoi', the executor of E. Rector, for a seai'°h among the papers of the deceased for the bond, That one Evans, who had the care of the papers, at two difierent times, by the direction of the executor, search-diligently, as he swears, among the papers for the bond, could not find the same, and so informed the complainant. It is also in proof, that Trigg, after the suit brought, made a search and could not find the paper, and, on the second search, and before his answer, found the same in a letter written by Wells to Rector. Evans made his search before the suit was brought. Now the question is, was the evidence of the loss of the paper at the time the suit was brought sufficient to entitle the complainant to go into chancery 1 I am of opinion the evidence was sufficient. The complainant applied to the person who had the lawful custody of the papers, and he swears he made two diligent searches and could not find the paper. It now seems that no one ever opened the letter of Wells to Rector; if this had been done, the paper would have been found. But it seems to me the inside of that letter was an unlikely place to look for the bond, and this is the reason why the thing was not done. It seems to me, that by the evidence, when Wells brought