7 S.W. 283 (Mo. 1888), Huff v. Morton

Citation:7 S.W. 283, 94 Mo. 405
Opinion Judge:Brace, J.
Party Name:Huff v. Morton et al., Plaintiffs in Error
Attorney:Smith, Silver & Brown and W. S. Shirk for plaintiffs in error. W. W. Wood for defendant in error.
Judge Panel:Brace, J. Ray, J., absent.
Case Date:March 05, 1888
Court:Supreme Court of Missouri

Page 283

7 S.W. 283 (Mo. 1888)

94 Mo. 405



Morton et al., Plaintiffs in Error

Supreme Court of Missouri

March 5, 1888

          Error to Johnson Circuit Court. -- Hon. N. M. Givan, Judge.


         Smith, Silver & Brown and W. S. Shirk for plaintiffs in error.

         (1) The court erred in admitting in evidence the second deed offered by plaintiff. Boothroyd v. Engles, 23 Mich. 19. (2) Plaintiff's title is fatally defective in not showing a conveyance from Divers to Snelling. 1 Whar. Evid., sec. 90. Plaintiff should have shown that the deed was not recorded, and that he, therefore, could not produce the record of the deed, before being allowed to introduce oral proof as to same. A plaintiff in ejectment cannot recover on the weakness of defendant's title, but must rely on the strength of his own. Siemers v. Schrader, 14 Mo.App. 14; Foster v. Evans, 51 Mo. 39. (3) The fifth instruction should have been given, as asked by defendants. Defendants had the better title under the deed of trust executed December 20, 1870. Freeman on Ex., sec. 205. An execution does not operate as a lien after the writ has been returned. Brown v. Sheriff, 1 Mo. 154. A vendi. only properly issues when the sheriff fails to sell for want of bidders, or for lack of time, or for some similar reason. It does not apply where the parties themselves stop the sale. Hermann on Executions, sec. 35. (4) The fourth and sixth instructions asked by the defendants should have been given. The evidence in the case afforded a sufficient foundation for them, and the law declared in them falls within the ruling of this court when the cause was here before. 83 Mo. 403.

         W. W. Wood for defendant in error.

         (1) No error was committed in admitting the deed from Snelling to Caldwell. Haux v. Batteen, 68 Mo. 84. (2) No objection was made below as to the sufficiency of the foundation laid for the introduction of oral testimony as to the contents of the deed from Divers to Snelling, and the question cannot be raised for the first time in this court. Kuntz v. Temple, 48 Mo. 71; Boyse v. Burt, 34 Mo. 71; Waldo v. Russell, 5 Mo. 387; Bauer v. Franklin Co., 51 Mo. 205; Baker v. Crandall, 78 Mo. 592. (3) Plaintiff and defendants both claimed title from a common source, and it was sufficient for plaintiff to deduce his title from the common source without going further. Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 546; Charles v. Patch, 87 Mo. 450; Smith v. Lindsey, 89 Mo. 76. (4) The fifth instruction asked by defendants was properly refused. The lien of the original writ, and of the levy thereunder were continued by the venditioni...

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