Tully v. Canfield

60 Mo. 99 | Mo. | 1875

Sherwood, Judge,

delivered the opinion of the court.

Ejectment for recovery of certain land in military bounty land district.

The only question the case presents is the proper construction to be given to sections 35, 36 and 38 of chapter 35 D relation to Conveyances. (Wagn. Stat., 278, 279.)

The obvious and accomplished objects of the foregoing sections were, First, to waive, as to instruments conveying or affecting military bounty lands, any informality caused by non-compliance with our laws respecting acknowledgments, provided said instruments were acknowledged in accordance with the laws of the State where executed; second — to put the instruments thus acknowledged, on the same footing as though they fully conformed to our general law in reference to acknowledgments, with but the single exception, that until proof of loss or destruction of the originals, copies thereof were precluded from being read i.n evidence.

The sections mentioned can manifestly have no reference except to that class of conveyances specified therein ; and can by no possibility apply except upon the triple concurrence of First — a conveyance made of military bounty land ; Second —made outside of this State and within the United States: Third — acknowledged in conformity to the lex loci of its execution.

And, unless the instrument fully complies with the conditions specified in those sections, it fails to fall within then-purview; and whether relating to military'bounty, or other laud, is to be exclusively controlled by the provisions of the general law respecting acknowledgments.

The cases of Barton vs. Murrain, 27 Mo., 235; Christy vs. Cavanaugh, 45 Mo., 376 ; Crispen vs. Hannavan, 50 Mo., 415, are not in antagonism to this view, but, rather accord therewith, as those decisions only apply to a class of instruments falling fully within the terms of the sections under discussion.

The case of Totten vs. James, (55 Mo., 494) is at variance with the conclusion at which we have arrived in the case at bar; but doubtless owing to momentary inadvertence as to the proper distinction to be taken between instruments relating to military bounty land, the acknowledgment of which conforms to the laws of other States, and conveyances of the same description of land the acknowledgment of which, whether taken in this State or elsewhere, are in full conformity to our own laws.

As tlie conveyances in question fully complied with our general law in relation to acknowledgments, it was wholly immaterial where those acknowledgments were taken.

For these reasons, the instruction, in the nature of a demurrer to the evidence which effected the exclusion of the copies of deeds offered by plaintiffs, because the loss or destruction of the originals was not first proven, was erroneously granted.

Judgment reversed and cause remanded';

the other judges concur except Judge Vories. absent.