Anderson v. Cole

• Decision Date: 31 March 1911
• Citation: Anderson v. Cole, 234 Mo. 1, 136 S.W. 395 (Mo. 1911)
• Parties: ANDERSON v. COLE et al.
• Court: Missouri Supreme Court

136 S.W. 395

234 Mo. 1

ANDERSON v. COLE et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1911.

1. VENDOR AND PURCHASER (§ 233)—DEEDS— RECORDING—PRIORITY.

A deed will not take precedence over a subsequent one which is first recorded, where the recorded deed is based upon a valuable consideration.

2. VENDOR AND PURCHASER (§ 242)—PRESUMPTION AND BURDEN OF PROOF—CONSIDERATION.

Where the deed of plaintiff in ejectment, executed subsequently to that of the defendant, recites that it was executed in consideration of a certain sum and acknowledges the receipt of the consideration, the receipt makes out a prima facie case for plaintiff, and the burden of overcoming it rests upon the defendant.

3. DEEDS (§ 96)—RECITALS.

A recital in a deed of the payment of the consideration is sufficient evidence of the payment of value for the land.

4. EVIDENCE (§ 372)—DOCUMENTARY EVIDENCE —"ANCIENT DOCUMENT"—RECITALS.

A general warranty deed executed in 1878, reciting a consideration and through which plaintiff in ejectment claims title by mesne conveyances, is an "ancient document," and its recitals are admissible as evidence of the facts stated therein.

5. PAYMENT (§ 74)—EVIDENCE (§ 408)—RECEIPTS —CONCLUSIVENESS.

A receipt wherever found is prima facie evidence of the facts stated therein, but may be explained or overcome for most purposes by parol testimony.

Appeal from Circuit Court, Reynolds County; Jos. J. Williams, Judge.

Action by John A. Anderson against John Cole and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

This is an ejectment suit instituted by the plaintiff in the circuit court of Reynolds county against the defendant to recover the possession of parts of lot 1 of N. W. ¼ of section 3, and the east half of lot 1 of N. E. ¼ of section 4, township 33 N., range 2 E. The petition was in conventional form, and the answer consisted of a general denial and a plea of res adjudicata, which set up a former judgment in an ejectment suit between the same parties involving the same land. Upon defendant's motion this plea was by the court stricken out. William J. Luis was the common source of title, who derived title through mesne conveyances from the United States in the year A. D. 1865. The plaintiff claims title to the land through mesne conveyances from one Allen S. Swope by a general waranty deed, dated January 8, 1878, for a recited consideration of $3,000 (and the exchange of other property) in hand paid by the said Swope. This deed was recorded March 15, 1878. The plaintiff's evidence showed that the defendant was in the possession of the premises at the time the suit was brought. The defendant deduced title through mesne conveyances from Hugh H. Alexander, who claimed title from said Luis by deed, dated September 25, 1873, and recorded May 24, 1879. Upon that showing the circuit court found for the defendant, and entered judgment accordingly. Timely motions for a new trial were filed, and, after being overruled, the plaintiff duly appealed the cause to this court.

R. I. January and A. Lowenhaupt, for appellant.

WOODSON, J. (after stating the facts as above).

There is but a single proposition involved in this case, and that is, Does the deed through which the plaintiff claims title, which was executed approximately five years subsequent to the deed through which the defendant claims, but recorded about a year prior thereto, take precedence over the latter? It appears from the record that the trial court was of the opinion that it did not, for the reason that the prior recordation of plaintiff's deed did not cut out the previously executed deed of defendant, because the plaintiff did not show that the former was based upon a valuable consideration.

The law is well settled that a deed first executed will take precedence over a subsequent one, even though the latter is first recorded, without the latter is based upon a valuable consideration. That proposition is not denied by counsel for plaintiff. They do contend, however, that the record in this case shows that the subsequent deed was executed for a valuable consideration, and that it was duly recorded without notice of the existence of the previous deed.

In our opinion this contention of plaintiff is well taken. The record shows that the subsequently executed deed recites that it was executed in consideration of $3,000, and for the exchange of other property, and it also acknowledges receipt of the same. The receipt thus given for the purchase price of the land made out a prima facie case for plaintiff, and the burden of overcoming it rested upon the defendant, which he did not undertake to do, but stood alone on the previously executed deed.

The law is well settled here and elsewhere that the recital in the deed of the payment of the consideration is sufficient evidence of the payment of value for the land. Bobb v. Bobb, 89 Mo. 419, 4 S. W. 511; Allen v. Kennedy, 91 Mo. 324, 2 S. W. 142; Drey v. Doyle, 99 Mo. 459, 12 S. W. 287; Strong v. Whybark, 204 Mo. 341, 102 S. W. 968, 12 L. R. A. (N. S.) 240, 120 Am. St. Rep. 710; Ward v. Isbill, 73 Hun, 550, 26 N. Y. Supp. 141; Ryder v. Rush, 102 Ill. 338; Roll v. Rea, 50 N. J. Law, 264, 12 Atl. 905.

It is also a familiar rule of evidence that the recitals in ancient documents are evidence of the facts stated therein; and this deed comes within that classification. Everley v. Stoner, 2 Yeates (Pa.) 122; Fulkerson v. Holmes, 117 U. S. 389, 6 Sup. Ct. 780, 29 L. Ed. 915; Paxton v. Price, 1 Yeates (Pa.) 500; 12 Vin. Abr. 57; Bowser v. Cravener, 56 Pa. 132; Davis v. Gaines, 104 U. S. 386, 26 L. Ed. 757; 2 Am. & Eng. Ency. of Law, 331; Sydnor v. Texas Saving & Invest. Co., 94 S. W. 451. In the case of Strong v. Whybark, 204 Mo. 341, 102 S. W. 968, 12 L. R. A. (N. S.) 240, 120 Am. St. Rep. 710, one Hayden in 1861 conveyed certain land for an expressed consideration of $640 to one Moore, and in 1863 the same...