Butcher v. Rogers

• Decision Date: 31 May 1875
• Parties: SAMUEL BUTCHER, Plaintiff in Error, v. THOMAS ROGERS, Defendant in Error.
• Court: Missouri Supreme Court

60 Mo. 138

SAMUEL BUTCHER, Plaintiff in Error,

v.THOMAS ROGERS, Defendant in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Carroll Circuit Court.

Murat & Masterson, for Plaintiff in Error.

L. H. Waters, with Hale & Eads, for Defendant in Error.

SHERWOOD, Judge, delivered the opinion of the court.

Ejectment for lands in Carroll County. The title of the plaintiff was as follows:

“A deed from John Butcher to plaintiff, executed Nov. 15th, 1869, recorded Nov. 24th of that year; a deed of general warranty for a portion of the land in question, and quitclaim deed for the residue thereof, executed by Chas. Hager and wife to John Butcher, March 12th, 1860, and recorded April 7th, 1864; a title bond from Chas. Hager and wife to John Butcher for the land sued for, executed May 3rd, 1859, and recorded the next day. Upon this bond there was indorsed an assignment dated Sept. 10th, 1861, by John Butcher to plaintiff which was recorded Dec. 27th, 1869, and by agreement of parties, this assignment is to be considered as a deed from John Butcher to plaintiff.

The defendant's title consisted, first, of a deed for the land in suit, from Thos. Parsley to defendant, executed Feb. 20th, 1865, and filed for record the 23rd of that month; (this deed grants, bargains and sells “all the right, title and interest” that Parsley and wife have in the premises in dispute, and contains a recital in these words: “their title being a sheriff's deed, said land being sold as the property of John Butcher, to satisfy an execution in favor of Austin Shine”) and, second, of a deed for the land in controversy “made, acknowledged and delivered at the March Term, 1865,” by the sheriff of Carroll County, to Thos. Parsley and duly acknowledged, but not recorded. This deed was not in existence, but secondary evidence was resorted to to supply this deficiency, showing the contents of the deed and that the property therein described was sold to Thos. Parsley as the property of John Butcher, under a special execution in favor of Austin Shine.

By the agreement of parties filed in this court, it is conceded that Austin Shine attached the property in litigation in March, 1863, as that of John Butcher, and under a judgment rendered in that year, in that cause, the attached property was sold at the March Term, 1864; there is no stipulation, however, as to the time when the deed to Thos. Parsley was made by the sheriff, and we are left to the record to ascertain when this deed was executed.

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