88 Mo. 644 (Mo. 1886), Drake v. Curtis

Citation:88 Mo. 644
Opinion Judge:HENRY, C. J.
Party Name:DRAKE, Appellant, v. CURTIS et al.
Attorney:Myers & Moore for appellant. McKee & Jayne and Bartlett & Givens for respondents.
Court:Supreme Court of Missouri
 
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Page 644

88 Mo. 644 (Mo. 1886)

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...

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