89 Mo. 537 | Mo. | 1886
On December 22, 1880, plaintiff brought ejectment for a certain lot in the city of Cape Girardeau, and on trial had recovered judgment for the premises in question. David Bryant was the source of title of plaintiff, and plaintiff’s evidence showed title in Bryant, derived from the government through mesne conveyances, Bryant’s immediate grantor being Joseph Andrews by deed dated May 12, 1812. On the same day the land was “ mortgaged ” to Joseph Andrews to secure, as it seems, the payment of the purchase money, three hundred and fifty dollars.
It is scarcely necessary to discuss the sufficiency of the certificate of acknowledgment of the officer to a deed made in 1819 by Joseph Andrews and wife, to David Bryant, whereby the mortgage aforesaid purports-to be released, and the land re-conveyed to Bryant, for the reason that, leaving that instrument out of consideration, the title in Bryant is still perfect, as the mortgage will be presumed to be satisfied after the lapse of twenty years, nothing to the contrary thereof appearing. Chouteau v. Burlando, 20 Mo. 482; Cape Girardeau v. Harbison, 58 Mo. 90. But if there is any defect in the certificate it is cured by virtue of sections 2805, 2306,-Revised Statutes, since the deed has been of record since 1824. So that taking either view of the point, the title in Bryant, the ancestor, -was indisputable.
-Then followed evidence showing the death of Bryant, and who his heirs were, and that among the grantors in those deeds were those heirs. As to two of those -heirs the deed, if otherwise sufficient, undoubtedly
Cases where the wife is seized of land as at common law, and cases where she is seized of land under the married woman’s act are not at all analogous in their incidents and consequences. In the former class of cases the husband is as unfettered in his conveyance of .whatever interest he has in his wife’s land as he was at common law; in the latter class, he can only convey in 'the mode pointed out in the statute, section 3295. Or, as is said in Hord v. Taubman, 79 Mo. 101, “In a conveyance made under the provisions of the statute of the fee of the wife, the title can onty be transferred as an indivisible integer or not all.” Counsel on either side do not appear to apprehend this distinction; it is a very marked one, and is pointed out in Mueller v. Kaessman, 84 Mo. 318, and cases cited. If in the case at bar the wives were seized under the act referred to a very different question would be presented here. It follows from what has been said that if the conveyances to plaintiff were of any validity he became seized of two-.fifths of the title of the premises absolutely, and this
But it is claimed that the deeds in form are insufficient to pass the title to plaintiff, for that they are mere quit-claim deeds, simply employing the words “ remise, release, and forever quit-claimP In New York, then possessing a statute of uses similar to our own, it was ruled that such words as those I have mentioned will raise an use by way of bargain and sale, which, by force of the statute of uses, becomes operative to pass the title. Jackson v. Burgot, 10 Johns. 456. And in the same case it was also ruled that no precise technical words are requisite to raise an use ; that if the words amount to a present contract of sale or bargain a trust is instantly raised on which the statute operates. And in the same • case it was also ruled that the words “ release and assign ” were operative words of conveyance equally, efficacious in accomplishing the same result. To the game effect see Platt v. Brown, 30 Conn. 336.
In Hunt v. Hunt, 14 Pick. 374, where the effect of •a quit-claim deed was being discussed, Shaw, C. J., ob■served: “Courts of law have gone very far in modifying the rules of conveyance, both those of the common law and those which have their effect from the statute of uses, so as to give effect and. operation to the deeds of parties rather according to the manifest intent than according to the force of the particular words used to effect the conveyance. So that, where it is manifest from the •efficient words of conveyance used, that it was intended .and understood that the estate should pass in one way
I am thus brought to consider the point whether the-Bryant heirs were barred by the statute prior to suit brought. There were no declarations of law asked or refused and no points saved for review on that subject. On what theory the court tried the cause, it is impossible to determine. And it has been the custom of this, court in such cases to refuse to interfere. Durel v. Masterson, 50 Mo. 487; McEvoy v. Lane, 9 Mo. 47; Von Phul v. City, 9 Mo. 48. But notwithstanding this it has been frequently ruled by this court that, while it will not weigh the evidence in law cases, yet that it will interfere when there is no evidence whereon to base the verdict, although no instructions are asked. Hart v. Leavenworth, 11 Mo. 629; Robbins v. Phillips, 68 Mo. 100; Pipkin v. Allen, 24 Mo. 520; Heyneman v. Garneau, 33 Mo. 565; Morris v. Barnes, 35 Mo. 412; McEvoy v. Lane, supra. And it has also been ruled by
The only point remaining for discussion is whether
Finding no error in the record the judgment should be affirmed.