79 Mo. 615 | Mo. | 1883
This is an action of ejectment commenced in April, 1879. The defendant answered and admitted his possession; that he held under a mortgage executed by Gabriel Long to Miles Hale and Benjamin Enott in December, 1861; that said mortgage was duly recorded January 21st, 1862; that it was due and unpaid ; that the defendant bought it, and Hale and Enott assigned it to him; that by mistake the land was misdescribed in said mortgage, when it was made, as in section 14, whereas it was m section 15; that Long intended to convey the right land, and he and the mortgagees supposed it was right; that Long owned no other land m 14 ; that the correct land — that in section 15 — is the land this defendant holds and is m possession of under said mortgage; that plaintiffs knew the defendant was in possession of and claimed the land as his own long before their purchase, and also knew of the misdescription in the mortgage, and that it was recorded and was not satis
The plaintiff's replied, and alleged that defendant took the assignment of said mortgage and debt long after said land had been purchased by Robert Davison, who bought it without notice of said mortgage; that defendant was a “ voluntary assignee ” of said mortgage and had paid nothing for it; and that defendant cannot have said mortgage reformed and corrected as against plaintiffs, who are bona fide grantees of said Robert Davison. Eor further reply plaintiffs say that in 1875, in Andrew county, there was a suit between the aforesaid Robert Davison and Holmes Robertson, the defendant, in which said action the title to the land now in controversy was in issue; that in his answer in that case Robertson pleaded the same defense set up now under said assigned mortgage from Hale and Knott; that the circuit court and the Supreme Court passed upon said mortgage, and the question was res adjudicata.
The defendant, in the answer to the petition of Robert Davison above mentioned, also set up as a defense a title in himself for said land acquired by a sheriff’s deed for Gabriel Long’s interest therein obtained after the mortgage to Hale and Knott; also a title in himself acquired from the heirs of Jacob Bird, the original owner of the land; and claimed possession and title under the sheriff’s deed, under the Birds and under the Hale and Knott mortgage.
Plaintiffs, to sustain their action, offered a sheriff’s deed to Robert Davison dated June, 1872, for the land in controversy, also the decree of the circuit court of Andrew county in the case above referred to of Robert' Davison against Holmes Robertson, in substance as follows : That Jacob Bird died in 1850 seized of the land in controversy; that afterward the heirs of Jacob, in conveying it to Eli Bird, by mistake described it as in section 14 instead of in 15 ; that afterward Eli Bird conveyed to Gabriel Long in 1860, making the same mistake in description, but that
Defendant then offered the mortgage from Gabriel Long to Hale and Knott, dated December, 1861; and introduced Knott as a witness, and proved the assignment and that the note had not been paid; that' “ the consideration of the assignment between him and Robertson was, that he was to pay me for said assignment whatever amount he was benefited by the same.” Defendant being sworn said he had lost the assignment, which was made on a paper separate from the note; that the last time he saw it, it was in possession of Judge Pike, an attorney in the case ; that he bought the land at sheriff’s sale in 1864, got a deed and took possession of it; that in 1860 and 1861 Long was in possession of it, cutting wood and making rails; that he owned no other land in section 15; that he paid taxes on it up to 1873, and cut wood and rails on it and hauled them off. Defendant proved the same facts in substance by ¥m. Wade, and rested.
Plaintiff, in rebuttal, then read the answer of Robertson, the substance of which has been stated.
The appellant insists that his possession under the Hale and Knott mortgage is sufficient to defeat the plaintiffs’ recovery; and secondly, that plaintiffs’ right of action Is barred by the statute of limitations.
The judgment will be affirmed.