Bartlett v. Glasscock

• Decision Date: 30 April 1835
• Citation: 4 Mo. 62
• Parties: ROBERT B. BARTLETT v. GLASSCOCK AND OTHERS.
• Court: Missouri Supreme Court

4 Mo. 62

ROBERT B. BARTLETT

v.GLASSCOCK AND OTHERS.

Supreme Court of Missouri.

April Term, 1835.

APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY.

MCGIRK, J.

Bartlett exhibited his bill of complaint in the Circuit Court sitting in chancery. The substance of the bill is, that in the year 1828, McRea and Rush, two of the defendants, being administrators of the effects of one David Rush, acting under the authority of the County Court of Marion county, sold at public sale to pay debts, eighty acres of land on which a mill was erected, that the same was sold on a credit, and that one Glendy, one of the defendants, became the purchaser, and gave his bond and O. Dickerson, also one of the defendants, security for the payment of the purchase money--the purchase money was $801--that the administrators executed to Glendy, their bond to make him a title on the payment of the money. That Glendy in the same year, entered four eighty acre tracts of land around and adjoining the mill tract in his own name, but with Bartlett's money and for Bartlett's use. That Bartlett then and afterwards advanced to Glendy large sums of money and paid debts for him amounting to three thousand dollars--and that upon this consideration, Glendy on the 11th of November, 1828, and after the entry of said land, and after the purchase of the mill tract, executed to Bartlett a deed in fee for the five pieces of the land above mentioned, including the mill. That on the 30th day of May, 1829, he assigned to Bartlett the title bond for the mill tract he had on the administrators. That the deed was executed in all the forms of law, that before the same was recorded the same was totally destroyed by accident. That on the 23rd of December, 1828, Glendy, by a deed duly executed, transferred the four eighty acre tracts by him purchased of the United States to Dickerson. That Dickerson took this deed with a full knowledge of the existence of the prior deed to Bartlett for the same land. The bill further states that the administrators with a full knowledge of Glendy's conveyance to Bartlett, prosecuted their suit against Glendy and Dickerson on their bond and obtained judgment against them after Glendy's conveyance to Bartlett, and after the deed to Dickerson of the four eighty acre tracts before mentioned. That on the 23rd October, 1829, the sheriff of Marion county by virtue of an execution issued on this judgment sold the whole of the five tracts of land including the mill, and that Dickerson became the purchaser of the mill tract, and that other persons became the purchasers of the other tracts. That Dickerson and Glasscock made an arrangement, for Glasscock to pay the amount of the judgment to the administrators, and Dickerson gave up his purchase to Glasscock. The purchasers of three of the other tracts also gave up their purchases to Glasscock. That he paid part of the money to the administrators and secured them as to the balance, and the sheriff then made a deed to Glasscock as purchaser of the mill tract, and also made a deed to him of the other three tracts in like manner. The bill further charges that Dickerson, the administrators, Glendy and Glasscock had full knowledge of the existence of his deed for all said land-- and that he was a fair and honest purchaser for a full and valuable consideration, and that they and each of them had full knowledge that Glendy entered the four 1/2 quarters in his name with Bartlett's money and for Bartlett's use. The bill prays for a decree annulling the deed of Glasscock and the deed to Dickerson, for possession of the lands and for an account of the rents and profits and for general relief. The answers admit the sale of the mill tract by the administrators to Glendy as stated in the bill--the administrators, admit the payment of the money to them, by Glasscock, and the satisfaction of the judgment against Glendy and Dickerson, deny notice of Bartlett's title. Glasscock and Dickerson admit the sheriff's sale as stated in the bill, admit the deed to Dickerson of the four 1/2 quarters, deny all knowledge of Bartlett's title, deny combination and fraud, &c. As to Glendy the bill is taken to be confessed The complainant filed his replication and on this state of pleading the cause was set for hearing.

On the hearing Bartlett proved beyond dispute, the due execution of a deed to him by Glendy for the lands in question of the date in the bill mentioned, he proved the destruction by his own oath, and by the oath of a witness he proved the contents of the deed. He also proved by the testimony of some witnesses that Glasscock and Dickerson had notice of his title. He also gave some evidence of the consideration paid by him to Glendy for the land, which will be attended to when we come to consider the case on this point. He also proved clearly that the four half quarters entered by Glendy in his name were paid for with his money. The Circuit Court after hearing the evidence dismissed the bill of complaint generally; the cause is brought here by appeal. The appellant makes several points, the most prominent of which only will be noticed.

The first point made by the appellant is, that equity will set up a lost deed. The second is, that the sale to Glasscock is void because the land on which the execution was levied was not subject to execution. The appellee insists that in this case Bartlett has not made out by evidence that his deed was lost, insists the sale by the sheriff is good and valid, and that, as to the land on which the mill is, there existed at the time the sheriff sold the land a lien which Bartlett must satisfy before he can hold the land.

For the sake of convenience, we will consider this case in two main points of view.

1st. Has Bartlett any title in law and equity which a court of chancery can set up for him? If he has no such title then it will not be material to investigate the title of the defendants. Secondly. If Bartlett has such title, then has Glasscock who is mainly interested in this case any better and stronger title either in law or equity to oppose to Bartlett's right?

We will first consider the fact of Bartlett's lost deed. Chapman, a witness in the case swears that about first of January, 1829, Bartlett showed him a deed purporting to be executed by Glendy to Bartlett for all this land. It was shown to him for the purpose of obtaining his opinion whether it was good in law for that--and that his opinion was that it was good--and that the date corresponded with the time alleged in the bill, and the consideration expressed in the deed was $3000.

Mr. Hendricks a witness swears that he as justice of the peace took the acknowledgment of a deed from Glendy to Bartlett some time in or about the time spoken of by Chapman for all the land in question.

Mr. Fry swears that about the same time Bartlett brought to his house in Palmyra, a deed corresponding with the description given by the other witnesses which was for the same land--and asked him to have it recorded, which he promised to do--that the deed was then injured by some acid, and that he laid it away in his desk That in a few days thereafter he looked at the deed again, and that it was then illegible so that he did not offer it for record, This testimony satisfies us that the deed set up by the complainant's bill did exist in the beginning of the year 1829, and that it was by some accident destroyed. Bartlett then gave evidence to show that he paid to Glendy a full and fair consideration for the land mentioned in the deed. The proof on this point is as follows:--Doct. Fry says that some time in the year 1828 or 1829, he knows that Bartlett paid Glendy on a settlement of their accounts $800 or $1000--heard him acknowledge at another time that Bartlett had paid him in full for the mill. That Bartlett retained possession of the mill from the time it was delivered to him, till the sale under execution. Means, a witness, says that before this time Bartlett deposited with him $2000 to be disbursed on his order. That on the 8th of February, 1828, Bartlett by order directed him to enter the four half quarters of public land in question in the name of Glendy, and to pay for the same with his money, which was accordingly done--says that he frequently let Glendy have money on the orders of Doct. Bartlett; the witness does not state how much money in all Glendy obtained from him on Bartlett's account. Another witness says Bartlett paid workmen wages, frequently, who were at work on the mill in Glendy's possession--how much he does not state.

This is all the testimony on the record with regard to the consideration of the deed. The defendants gave in evidence a former bill of complaint exhibited by Bartlett against Glendy and others after the date of Glendy's deed to Bartlett, in which bill Bartlett claims that Glendy yet owes him $3000 for money advanced or loaned. Upon this state of testimony the question is made whether Bartlett has proved a sufficient consideration to support his deed? We are clearly of opinion that as to the four one-half quarters entered in Glendy's name, that Bartlett's money paid for the same, and that this fact is a sufficient...