Drake v. Curtis

• Citation: 88 Mo. 644
• Parties: DRAKE, Appellant, v. CURTIS et al.
• Decision Date: 30 April 1886
• Court: United States State Supreme Court of Missouri

88 Mo. 644

DRAKE, Appellant,

v.CURTIS et al.

Supreme Court of Missouri.

April Term, 1886.

Appeal from Scotland Circuit Court.--HON. BEN. E. TURNER, Judge.

REVERSED.

Myers & Moore for appellant.

There is nothing in the plea of ten years possession. Plaintiff has shown that he has purchased Curtis' interest, whatever that may have been, and this raises a prima facie right to recover, unless defendants can show a better title than that of the common grantor. 64 Mo. 545. There is nothing inconsistent in plaintiff showing title through Curtis and also through the other source. The petition sufficiently describes the land. Defendants admit they were in possession, and have no right to complain of the description. The evidence shows Joel Curtis held as agent only, and his possession could not have been adverse to his principal. 43 Mo. 153. The court erred in excluding the certified copy of the will of Curry. 13 Mo. 612; 50 Mo. 579; 80 Mo. 125; 31 Mo. 40. A will probated according to the laws of Iowa is sufficient to pass title to real estate owned in Missouri, and if properly authenticated, should be admitted in evidence. Con. U. S., sec. 1, art 4. Possession and improvement on a part of the land under color of title, is sufficient possession of the whole tract to authorize the plaintiff to maintain ejectment against defendants, who have no title to the part of the tract in their possession. 49 Mo. 397; 43 Mo. 556; 53 Mo. 305; 60 Mo. 59; 64 Mo. 545; 74 Mo. 142.

McKee & Jayne and Bartlett & Givens for respondents.

The instruction of the trial court to find for respondents was correct. There was no sufficient authentication of the will of Wm. Curry to admit it as evidence in the cause. Neale v. McKinstry, 7 Mo. 129. Neither the clerk of the county court nor the notary public had authority to take proof of the execution of wills under the Revised Statutes in force at that time. See Revised Statutes of Missouri for the year 1845, page 1,081, section 18, being the law under which this will was attempted to be probated. And no commission was ever issued to said clerk, or notary public to take the evidence of said will. No authenticated copy of said will ever was recorded in this state, and could not, therefore, pass title to real estate here. R. S., Mo. 1845, p. 1084, secs. 35, 36. The will could not pass title without being recorded here, and the attempted authenticated copy of the record of the will from Iowa could not be received as evidence here. Without record here the will has no extra territorial force in this state. Cabanne v. Skinker, 56 Mo. 357. There was no evidence that the deeds from the persons mentioned in the bill of exceptions, were deeds of the children and heirs of Jack and Tena, as mentioned in the will of Curry. As to the limitation claimed by respondents in their answer, appellant's own evidence showed that Joel Curtis had been in possession of said lands for more than ten years before the commencement of this action and improved the same. Appellant had no such possession as would enable him to maintain this action.

HENRY, C. J.

This is an action of ejectment for the possession of a tract of land in Scotland county, which is a part of an eighty acre tract entered by one William Curry, who received a patent from the government therefor. By his last will and testament, and the third clause of the same, he manumitted his slaves, Jack and Tena, and their children, eight in number, naming them. He afterwards immigrated to the state of Iowa, Lee county, where he died, and his will was duly admitted to probate in the state of Iowa.

Plaintiff offered a certified copy of the proceedings of the probate court of Lee county, Iowa, and of the judgment of that court probating the will; but on objection made by defendant it was excluded. Other testimony was offered by plaintiff, but the trial resulted in a judgment for defendant, from which this appeal is prosecuted. The exclusion of the certified copy of the record of the probate of the will necessarily defeated the plaintiff's recovery. That excluded, there was no testimony showing the title...