Pearce v. Dansforth

13 Mo. 360 | Mo. | 1850

BIROII, J.

It having been decided at the present term, in the case of Mayor v. Hill and others, that delivery of a deed by the grantor, for the purpose of having it recorded, may, under proper concurring circumstances, be regarded as a delivery to the grantor, or trustee, there seems nothing in the instructions of the court upon that point which might not at all events have been rendered plain and pertinent to the supposed purposes of the plaintiff, had he asked a short explanatory instruction. The judgment cannot therefore be disturbed upon that ground.(a)

As it is a matter of discretion with the inferior courts, to admit or exclude testimony when offered after a case lias been once closed, many reasons suggest themselves why the exercise of that discretion should be respected, even beyond what may be apparent from a mere reference to the record. AVithout, therefore, intending to intimate that cases may not arise, in which the abuse of such a discretion may be too apparent to be overlooked, we forbear any further review of the question which has been raised upon that point in the present case, than to add that if it were exercised injudiciously, or oppressively, it has not been pointed out. The same remarks are applicable to the sécond interplea, and the matter concerning the misconception of the attorney we apprehend is scarcely relied upon. To entertain such reasons as a ground for opening up a case anew, would be to give to trials a multiplication so indefinite, as to render them expensive and oppressive farces, instead of sober realities for the adjustment and enforcement of civil rights.

Without deeming it necessary, therefore, to rc-state the doctrine applicable to other points which have been raised in this case, it seems to us sufficient that (at least inferentially) the attachment was not only issued, but the property in question was in the hands of the sheriff at an earlier hour on the 18th January than the deed of trust was delivered for record. At least, the plaintiff had an opportunity, under the instructions of the court, to have had that question settled according to the belief of the jury — the appropriate triers of such a fact — but he seems to have waived it, leaving the inference of the law in favor of the possession of the sheriff, as above intimated.

It is not for us to determine under the aspect in which this case is presented, whether the date of the deed or the date of recording shall prevail. It is deemed sufficient for us to decide, that in order to divest the rights which prima facie resulted from the possession of the attaching creditors, it was necessary to establish an unambiguous and unsuspicious precedent right, failing to do which, by leaving it to a jury to determine, the properly necessarily remained under the legal custody which had previously attached to it. The judgment of the Court of Common Pleas is therefore affirmed.