Altringer v. Capeheart

• Decision Date: 31 October 1878
• Parties: ALTRINGER, Plaintiff in Error, v. CAPEHEART.
• Court: Missouri Supreme Court

68 Mo. 441

ALTRINGER, Plaintiff in Error,

v.CAPEHEART.

Supreme Court of Missouri.

October Term, 1878.

Error to Henry Circuit Court.--HON. F. P. WRIGHT, Judge.

B. G. Boone for plaintiff in error.

Ladue & Fyke for defendant in error.

NORTON, J.

This is an action of ejectment to recover possession of eighty acres of land in Henry county. The petition is in the usual form, and the answer is a general and specific denial. On the trial judgment was rendered for defendants, from which plaintiff prosecutes his writ of error. It was admitted on the trial that Joseph Capeheart entered the land in controversy from the United States. Plaintiff, to maintain his cause of action, offered in evidence a deed of warranty from Joseph Capeheart and wife, to one Joshua F. Furgerson, to the land in controversy, dated November 10th, 1860; also a mortgage on said land from Furgerson to George Gutridge, dated _____, 1863; also a sheriff's deed from Henry T. Dodson, as sheriff of Henry county, to George Gutridge, for said lands, which was sold under decree and judgment of foreclosure of said mortgage from Joshua F. Furgerson to George Gutridge, said sheriff's deed was dated October 15th, 1870; also warranty deed from George Gutridge and wife to plaintiff in error, dated January 20th, 1874; also second deed of warranty from George Gutridge and wife to plaintiff in error, for said land, dated January 20th, 1874. The defendant, in support of his title, introduced and read in evidence, against objection of plaintiff's counsel, a certain deed from George Gutridge and wife to Joseph Capeheart, to the land in question, dated November 17th, 1866; also a deed from Joseph Capeheart and wife to Aaron Capeheart and James Capeheart, dated in 1869; also a deed from Aaron Capeheart and James Capeheart to defendant, John Capeheart, dated in 1871. It was further admitted by both parties, on the trial of the cause, that at the time of the execution of the deed of November 17th, 1866, from George Gutridge and wife to Joseph Capeheart, (read in evidence by defendant,) the mortgage from Furgerson to Gutridge was outstanding and unpaid, and belonged to said George Gutridge; and it was further admitted, by both parties, that said mortgage was, afterwards, foreclosed, and that Gutridge purchased the land in controversy at the foreclosure sale.

1. THE WORD “RELEASE.”

The controlling question in the case arises upon the construction of the following deed: “Know all men by these presents, that we, George Gutridge and Elizabeth, his wife, of the county of Henry and State of Missouri, have this day, for and in consideration of $1.00, to them in hand paid by Joseph Capeheart, the receipt whereof is hereby acknowledged, do grant, bargain and sell, and by these presents do grant, bargain, sell and release unto the said Joseph Capeheart, his heirs and assigns forever, the following described real estate, being the same several tracts or parcels of lands conveyed by S. K. Williams, sheriff of Henry county, to said George Gutridge by deed, bearing date October 13th, 1866, and therein fully described and set forth.” Then follows a description of the lands embracing 320 acres, and including the lands in controversy. “To have and to hold the above described real estate free from the claim or claims of all persons whatever. In witness whereof, we have affixed our hands and seals...