91 Mo. 616 | Mo. | 1887
Ejectment for lot sixty-three, in the town of Benton. Both parties claim under Elizabeth Crow, as the common source of title. To show title in himself, the plaintiff, after showing title in Albion Crow, the husband of Elizabeth Crow, by a commissioner’s deed, dated October 28, 1845, next offered in evidence a deed from the collector of Scott county, Thomas S. Rhoades, to Elizabeth Crow, dated October 28, 1867,
“Know all men, by these presents, that I, Elizabeth Crow, of the county of Scott and state of Missouri, have, this day, for and in consideration of the sum of seven hundred dollars, to me in hand paid by Joseph EL Moore, of the same county and state, granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said Joseph H. Moore, the following described real estate, situate in the county of Scott and state of Missouri, that is to say, the southeast quarter of the northeast quarter of section fourteen, and the undivided half interest in the west half of the southwest quarter of section twelve, in township twenty-eight, north, range thirteen, east, it being forty and undivided half of eighty acres. Also, all the right, title, and interest which I have of, in, and to lots ninety-one and one hundred and twenty-one, in the town of Commerce, in said county of Scott, and, also, lot sixty-three, in the town of Benton, in said county of Scott.”
The next link in the chain of plaintiff’s title was a deed to Elizabeth Crow, acknowledged October 29, 1870, «executed by plaintiff, as administrator of Albion Crow, and conveying the lot in question. The claim of the defendant, Harris, is based on a warranty deed for the lot aforesaid, executed November 30, 1877, by Elizabeth Crow to Mary. J. Harris, wife of said defendant Harris.
I. The deed of the collector of Scott county, for the lot in dispute, executed to Elizabeth Crow, in 1867, was worthless, and conveyed no title, and was void on its face, in consequence of its failing affirmatively to show that all the prerequisites which the law had prescribed, as to the fact of notice having been given of the delin
The bill of exceptions shows that this deed was admitted in evidence, despite the objections of the defendants. The judgment for plaintiff, however, recites that it was finally excluded from the consideration of the jury, by order of the court. This recital, if true, should have been preserved by the bill of exceptions, the office of which is to preserve all matters of mere exception. I judge, however, from the first instruction ashed by, and refused the defendants, that the court did not regard the collector’s deed as void on its face. It was thus void, as already seen from the authorities cited, and no title passed to Elizabeth Crow by reason thereof.
II. I now come to consider the effect of the deed to plaintiff of date March 25, 1868, whose recitals have already been in substance set forth ; for, on this deed, plaintiff ’ s paper title exclusively depends. I think it quite-too plain for argument that the statutory covenants of “grant, bargain, and sell,” do not extend to, nor include, the lot in question. If this be true, then the deed just mentioned, so far as concerns lot sixty-three, is, in effect, a bare quit-claim deed, and no after-acquired title of Elizabeth Crow could enure to the benefit of plaintiff. Besides, it already appears that at the time the deed of
III. Nor did the plaintiff gain any title to the premises by reason of the operation of the statute of limitations, since his possession was not adverse and continuous for the requisite statutory period. Wilson v. Albert, 89 Mo. 536.
As this cause was not tried in conformity to the views here announced, the judgment is reversed and the cause remanded.