Allen v. Moss

• Decision Date: 31 October 1858
• Citation: 27 Mo. 354
• Parties: ALLEN, Appellant, v. MOSS, Respondent.
• Court: Missouri Supreme Court

27 Mo. 354

ALLEN, Appellant,

v.MOSS, Respondent.

Supreme Court of Missouri.

October Term, 1858.

1. By the Spanish law a verbal sale of immovable property was valid; to constitute snch a sale valid it was not necessary the vendee should take possession, though taking possession would be strong corroborative evidence of such a sale.

2. The eighth section of the act of October 1st, 1804 (1 Terr. Laws, p. 47), requiring all deeds and conveyances to be recorded under the penalty of being adjudged fraudulent and void against subsequent purchasers and mortgagees, did not overthrow the rule of the Spanish law making verbal sales of land valid.

3. Where a deed of conveyance purports to have been executed by making a mark or cross and has been attested in the same manner, the 27th section of the act of March 25th, 1845 (R. C. 1845, p. 223), did not authorize the granting of a certificate of proof of such a deed.

4. Where a document is admissible in evidence for any purpose, it should not be excluded; it devolves on the opposite party to call on the court to state and explain to the jury how far and for what purposes it is evidence.

5. The record of a deed not acknowledged or proved according to the law in force at the time such record was made, imparts notice to all persons of the contents of such deed. (See R. C. 1855, p. 731; Sess. Acts, 1847, p. 95).

6. Under the act of July 3, 1807 (1 Terr. Laws, p. 120, §45), a sheriff's deed unacknowledged in court was ineffectual to pass the title to the purchaser; the authority of the sheriff being statutory, it should have been strictly pursued.

Appeal from Jefferson Circuit Court.

The facts are set forth with sufficient fullness in the opinion of the court.

S. T. Glover, for appellant.

I. The court erred in receiving as evidence the transcript of the record on the claim of Smirl. It could not be used as evidence of title in any way; nor could the supposed deeds in said transcript contained be received as evidence against the plaintiff without some proof of their execution. The court erred in receiving the originals of said supposed deeds when offered by the defendant as evidence in connection with the affidavits of William Moss and Claibourne Thomas. They were no evidence of the execution of said deeds. (See R. C. 1845, p. 222, §22. The act of February 2, 1847 (Sess. Acts, 1847, p. 95), is no help to this testimony. The court erred in instructing the jury, on motion of defendant, that prior to 1816 no writing was necessary to a sale and conveyance of land. (See 1 Terr. Laws, p. 47, 178.) Instructions No. 5, 6 and 8 were erroneous. The court erred in not holding the unrecorded deeds void as against subsequent purchasers, for value, who recorded their deeds after the lapse of time mentioned in the statute. The execution of the deed of Ware and Clark and Brinley was legally proved. (R. C. 1855, p. 726, §18.) The court erred in not giving the instruction asked by plaintiff, with respect to the plaintiff's deed to Clark. When Clark joined Brinley in purchasing the land from Ware, he was estopped to deny that the deed of Ware conveyed the land to himself and Brinley in 1815.

Noell, for respondent.

SCOTT, Judge, delivered the opinion of the court.

The foundation of this suit is a settlement right under the second section of the act of Congress of March 2d, 1805. The settler was Hardy Ware. In 1805 or '6, James Smirl, assignee of John Brinley, who was assignee of Hardy Ware, presented the claim to the board of commissioners, who in 1806 rejected it for want of actual inhabitation on the 20th December, 1803. This claim might have been confirmed, as it appears from the evidence, under the third section of the act of June 13, 1812; but, as no steps were taken to effect that object, it cannot now be sustained as a confirmation under that section. Under the seventh section of that act, William Russell, as agent for the claimant, gave notice to the recorder that the legal representatives of Hardy Ware claimed eight hundred arpens of land in the district of St. Louis, on the Meramec river. This claim embraced the land in controversy. It was filed on the 12th November, 1812; was reported for confirmation by the recorder, and confirmed by the act of 29th April, 1816. It was confirmed to the legal representatives of Hardy Ware. On the 11th day of August, 1815, Hardy Ware conveyed the claim to William Clark and John Brinley, by a deed recorded on the 23d of September, 1816, the northern half to Brinley and the southern half to Clark. On the 9th day of December, 1815, John Brinley conveyed his part to William Russell. This deed was recorded on the 13th day of December, 1815. In February, 1855, Russell conveyed to Thomas Allen, the plaintiff, by a deed recorded the 30th day of May, 1855. Before the board of commissioners and the recorder, there was a deed from Hardy Ware to John Brinley and one from John Brinley to James Smirl, both dated in October, 1805, on a day of the month not named. The grantors in these deeds, as well as the subscribing witnesses, were cross-men. On the 6th day of December, 1848, the execution of these deeds was proved by two witnesses. This was done under the 27th section of the act concerning conveyances, with a view that the deeds might be admitted to record. All the parties to the deeds, the grantors as well as the witnesses, having signed with a cross, the witnesses could not prove the handwriting, but testified that they were present and saw the parties sign the deeds, and heard them acknowledge that they were their acts and deeds respectively. They also saw the subscribing witness sign his attestation with a cross. In July, 1811, William Clark recovered a judgment against James Smirl, on which an execution issued, by virtue of which the claim of Smirl was sold and Clark became the purchaser. The deed to Clark was never acknowledged in open court. It was dated on the 7th March, 1812, and a great many years afterwards its execution was proved by a subscribing witness and it was put upon record. Allen, the plaintiff, did not show any conveyance from Clark to him, directly or indirectly, of the land purchased by Clark at the sheriff's sale. There was evidence offered to show the want of identity between the Hardy Ware who executed the deed in 1806, and the Hardy Ware who signed the deed in 1815 to Clark and Brinley. One of these deeds was signed with a cross and the other without it. There was offered also evidence to show that William Russell, under whom the plaintiff claimed, was aware of the claim of Smirl to the land in dispute. The defendant claimed in right of one of the heirs of James Smirl. This suit is for the northern half of the claim conveyed in 1815 by Ware to Brinley.

The court, at the instance of the plaintiff, gave the following instructions: “1. The confirmation of the tract of land in controversy, by the act of Congress of 29th April, 1816, was a confirmation to the legal representatives of Hardy Ware. 2. The legal representatives of Hardy Ware are such persons as are shown by the evidence to be legally entitled to the land confirmed by purchase from him, and showing a chain of valid transfers and conveyances from him. 3. Under the Spanish law that prevailed in the territory of Missouri until 1816, it was not necessary, in order to convey real estate, that there should be a deed or other instrument of writing executed by the seller to the purchaser, but it was competent and legal to sell and convey title to a purchaser by parol without deed or instrument. 4. The claim of Hardy Ware's representatives, presented by William Russell, as agent, to Frederick Bates, recorder of land titles and acting commissioner for settling claims to land in the territory of Missouri, was confirmed by the act of Congress approved 29th April, 1816, and enures to the benefit of such person or persons as are shown to have title to the land acquired by a regular chain of valid transfers from him. 5. If the jury find from the evidence that the deed from Hardy Ware to Clark and Brinley be a genuine deed, and that it was recorded before the deed of Hardy Ware to Brinley and before the deed of Brinley to Smirl, then the title acquired under the first mentioned deed is a better title than that acquired under the two last mentioned deeds. 6. There is no evidence before the jury of a confirmation of any other claim, distinct from that of Hardy Ware's legal representatives. 7. There is no evidence before the jury of the confirmation of any claim to Smirl other than the one to which he may have shown title to as the representative of Hardy Ware. 8. In the absence of any evidence to the contrary, the jury will infer that the Hardy Ware who claimed and first settled the land in controversy is the same person mentioned in the various deeds in evidence.”

The court refused to give the following instruction asked by plaintiff: “9. The deed from McNair, sheriff of St. Louis district, to Clark, divests Smirl or his heirs of all title to the land thereby conveyed; and if the jury find that the land described in said deed is the same land claimed by defendant, then neither Smirl, nor those claiming under him, are legal representatives of Hardy Ware.”

The defendant then asked the court to instruct as follows: “1. Under the Spanish law that prevailed in the territory of Missouri until 1816, it was not necessary, in order to convey real estate, that there should be a deed or other instrument of writing executed to the buyer by the seller; but it was competent and legal to sell and convey title to a purchaser by parol without deed or written instrument, provided the party purchasing took possession of the real estate so bought by him. 2. The claim of Hardy Ware's legal representatives, presented by William Russell as their agent, to Frederick Bates, recorder of land titles and acting commissioner for settling land claims in the territory of Missouri, was confirmed by the act of Congress of 29th ...