8 Mo. 301 | Mo. | 1843
delivered the opinion of the Court.
This was an action of ejectment brought by Keile against Walker, to recover possession' of a tract of land. On the trial Keile had a verdict and judgment, to reverse which Walker has sued out this writ of error.
The land in controversy, it seems, was sold under several executions issued against Walker, and Keile becoming the purchaser, he received an instrument from the sheriff, purporting to be a conveyance of the land. This instrument, in the body of it, was termed an indenture, and had a scroll annexed to the signature of the sheriff, but there was nothing in the body of it by which the scroll was •recognized as a seal.
On' the trial, this instrument, purporting to be a deed, was read in evidence, to which Walker objected, but his objection was overruled.
The question is, whether this writing, purporting to be a conveyance, should have been rejected as evidence? That a deed from the sheriff is necessary, to-convey to a purchaser such a title as will maintain an ejectment, is not questioned by the parties: and where a scroll is annexed, by way of-seal to an instrument, that it is necessary to recognize the scroll as a seal in the body of it, in order to give it the force and effect of a sealed instrument, has long since been settled by this Court; Cartmill vs. Hopkins, 2 Mo. Rep., 220.
It is contended that the present case is like that of Boynton vs. Reynolds, 3 Mo. Reports; and, like that case, it does not appear from the record but that the deed was actually sealed. In the ease referred to, the'instrument sued on was termed a sealed note, and from the report of it it appears that to the signature of the party sought to be charged there was annexed the word seal, included in brackets, thus, [Seal.] Upon these matters appearing upon the record, the court was of the opinion that if the instrument was actually sealed there was no other mode of making the fact appear than that adopted by the clerk.
In the case now before us, there is nothing contained in the record from which the court can infer that the instrument was actually sealed. The instrument is set out, and to it is annexed a scroll, and there is nothing in the body of it from which the court can ascertain that the scroll is recognized as a seal.
We will not say there was no other mode of showing that the instrument was actually sealed, had that been the case, than that employed by the clerk.
It will hardly be contended that calling the instrument an indenture in the body of it is a sufficient recognition of the scroll as a seal.
In cases of this kind parties should be particular, and see that the real character 'of the instrument appears from the record.
Judgment reversed.