Gaines v. Fender

• Decision Date: 31 October 1884
• Parties: GAINES et al. v. FENDER, Plaintiff in Error
• Court: Missouri Supreme Court

82 Mo. 497

GAINES et al.

v.FENDER, Plaintiff in Error

Supreme Court of Missouri.

October Term, 1884.

Error to Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

H. Lander for plaintiff in error.

(1) The lower court erred in admitting as evidence the copy of Morrison's will, and in holding the same sufficient to convey or dispose of the land in question. (2) The court also erred in admitting in evidence the deed of Henry Clay to Beckett. A foreign executor as such cannot convey lands in Missouri. Cabanne v. Skinker, 56 Mo. 367; McCarty v. Hall, 13 Mo. 480. The power given to Clay and Wickliff was accompanied by a personal trust and confidence, and the two should have joined in the conveyance. Cole v. Wade, 16 Ves. 27; Tainter v. Clark, 13 Met. 220. (3) The sheriff's deed to Ray was improperly admitted in evidence. The names of the parties to the execution should have been recited. Davis v. Kline, 76 Mo. 310; Wilhite v. Wilhite, 53 Mo. 71; McCormick v. Fitzmorris, 39 Mo. 31; Tanner v. Stine, 18 Mo. 580. (4) The tax deed of June 14th, 1875, offered in evidence by defendant, should have been admitted. Although dated after the commencement of the suit, it relates back to October 1st, 1868, the time of the tax sale. Blackwell on Tax Titles, pp. 452, 454, et seq. The tax deed was sufficient under the statute and at common law. State v. Mantz, 62 Mo. 252. (5) The trial court erred in refusing to declare the law as asked in defendant's fourth declaration; and also in finding for plaintiffs below on the law and the evidence as regards the defense of two years' adverse possession under the statute of limitations applicable to military bounty lands. Schultz v. Lindell, 30 Mo. 310; Clements v. Runckel, 34 Mo. 41; Smith v. Newby, 13 Mo. 159; Lander v. Perkins, 12 Mo. 238; Dessaunier v. Murphy, 33 Mo. 148.A. W. Mullins for defendants in error.

The questions sought to be raised by plaintiff in error as to the legal effect of the Morrison will and its admissibility in evidence, are res judicata. Gaines v. Fender, 57 Mo. 342. The will was duly probated and admitted to record in Fayette county, Ky., and the probate of a will in another state is a judicial proceeding to the record of which full faith and credit should be given. Haile v. Hill, 13 Mo. 612; Bradstreet v. Kinsella, 76 Mo. 63. The objection that there was no judicial sentence of probate is not well taken. The evidence of the subscribing witnesses to the will upon which it was admitted to probate need not be recorded. Charlton v. Brown, 49 Mo. 353; Bright v. White, 8 Mo. 421. It was not necessary in order to the admission of the copy of the will, that such will should have been admitted to probate in this state or recorded in the office of such court, or, indeed, that it should have been recorded in the recorder's office, as it was, of the county where the land lies. Lewis v. The City of St. Louis, 69 Mo. 595; Bradstreet v. Kinsella, 76 Mo. 63. Of the several persons nominated and appointed executors by the will, Mr. Clay was the only one who qualified, and the conveyance by him to Beckett was a sufficient execution of the power contained in the will. Dilworth v. Rice, 48 Mo. 124; Evans v. Blackiston, 66 Mo. 437; Gaines v. Fender, 57 Mo. 342. The recital in the sheriff's deed to Ray as to the parties to the execution was sufficient. The court did not err in excluding the tax deed, as the evidence showed that the judgment in the tax suit was against James Tower, as owner, whereas he was not the owner, he having conveyed it to James Morrison, April 3, 1819, and the deed was recorded July 14, 1819. Hume v. Wainscott, 46 Mo. 145. The defendant's motion for a new trial did not complain of the action of the court in refusing declarations of law and questions thereon cannot be raised here. Matlock v. Williams, 59 Mo. 105.

EWING, C.

On the 29th day of February, 1872, plaintiff commenced an action in ejectment in the circuit court of Linn county, afterwards transferred to Macon, to recover possession of the northwest quarter of the northeast quarter of section 36, township 57, range 21. The defendant denied all the allegations of the petition, except that he was in possession, and claimed ownership and title.

The plaintiff offered in evidence:

1. A copy of a patent from the United States to James Tower, dated the 6th of March, 1819, for the whole quarter section, being military bounty land.

2. Certified copy of deed from Tower to James Morrison for whole quarter, dated April 3, 1819. Recorded in Howard county July 14, 1819, when the land in question was part of Howard county.

3. Next read, against defendant's objections, what purported to be a copy of the will of James Morrison, dated December 21, 1820, and claimed to have been probated in Fayette county, Kentucky, in 1823. The will has this clause:

“I devise to Joseph Beckett, husband of my niece, formerly Jane Holmes, $3,000 worth of land, to be valued to him according to the valuations contained in the aforesaid list.” And this clause: “I vest in my executors my whole real estate in trust in fee simple to enable them to carry into effect my will; with power and authority to convey such parts thereof as I have devised in fee simple; and with power and authority to sell and convey the residue thereof, including that which will revert to my estate upon the death of my wife for the purposes of my will, and whenever my said executors shall deem proper. But no sale of any portion thereof to be valid without the concurrence of either Henry Clay or Robert Wickliff, two of my executors hereinafter named.” Then this clause: “That the land allotted to each devisee shall be designated to each devisee by Henry Clay and Robert Wickliff, and their umpire if they cannot agree.” Then this clause: “I do nominate and appoint my wife, Esther Morrison, executrix, and Henry Clay, Robert Wickliff, Farmer Dewese and Richard Holmes executors of this my last will and testament.”

To which copy are the following certificates:

1. “Fayette County, Sct. May Court, 1823. This last will and testament of James Morrison, deceased, was this day produced in open court, and proven by the oath of Frederick Ridgeway, Hugh Foster and Benjamin Gratz, the three subscribing witnesses thereto, and ordered to be recorded, and the same is therefore truly recorded in my office.

Attest:

JAMES C. RODES, Clerk.”

2. Then follows a certificate by the clerk that the schedule of lands which accompanied the will was duly recorded directly after the will.

3.

“STATE OF KENTUCKY,

)

)

ss.

Fayette County,

)

I, Allie G. Hunt, clerk of the county court of the county aforesaid, certify that the foregoing contains a correct copy of the last will and testament of James Morrison, deceased, with the certificate of probate of said will, and schedule list of lands as fully and fair as the same appears from the record, and on file in my office.

Given under my hand and official seal this 25 day of July, 1875.

(

L. S.

)

ALLIE G. HUNT, Clerk.”

4. Then follows the certificate of Benj. F. Graves, presiding judge of the Fayette county court, that Allie G. Hunt is clerk and that his attestation is in form as required by the act of congress in relation to certifying judicial proceedings of one State to be used in another.

This copy of the will and certificates numbers 1 and 2 were recorded in the recorder's office of Linn county on the 8th day of December, 1874.

Plaintiffs then read the statutes of Kentucky relative to wills, and defendant insisted, and now insists on the following objections to reading a copy of said will: 1st, No sufficient evidence that the supposed will was ever probated in Kentucky or elsewhere, there being no certified copy of the will, together with the probate thereof, furnished.

2. That the will is not properly authenticated, either under the laws of this State or the act of congress, there being no judicial sentence of probate certified or found on the paper.

3. That the will, nor copy thereof, has ever been admitted to probate or recorded in any county in this State.

4. That the will, not having been probated or recorded in this State for more than fifty years after its alleged execution, should be regarded abandoned as a source of title. All these objections the court overruled.

Plaintiffs next read, against defendant's objection, a deed by Henry Clay, executor, to Joseph Beckett, dated November 8, 1823. Recorded in Chariton county September 10, 1826, when the land was a part of Chariton county.

This Clay deed was objected to:

Because the foreign executor had no power to convey the land, he never having qualified as such under the laws of Missouri. Because the power in the will was not well executed by one of five executors, no facts being shown to authorize a survivorship to one executor.

Plaintiffs next read deeds from Joseph Beckett to Thomas Arnold, dated September 15, 1832, recorded in Chariton county November 4, 1834. And Thos. Arnold to Don Carlos Buckland, dated March 5, 1840, recorded in Linn county April 19, 1841; these deeds all covering the whole quarter section.

Next read a sheriff's deed by the sheriff of Linn county, to R. D. Ray, dated April 19, 1841, recorded in Linn county April 21, 1841, which sheriff's deed was properly acknowledged and recorded in Linn county on the 21st of April, 1841.

Defendant objected to the sheriff's deed:

Because it does not contain the requisite recitals to make it evidence under the law. Because it does not recite the names of the parties to the execution under which the sale was made.

Next read deeds from R. D. Ray to Alfred Ray, dated January 14, 1842, recorded in Linn county July 10, 1867, and Alfred Ray to Rob. S. Gaines, February 15, 1842, recorded in Linn county March 20, 1844. Next plaintiffs showed the death of Rob. S. Gaines in 1850 and that plaintiffs were his heirs at law. Here plaintiffs rested.

Defendant's case is this:

For color of title to base adverse possession for two years under statute of limitations...