Block v. Morrison

• Decision Date: 31 October 1892
• Citation: 112 Mo. 343,20 S.W. 340
• Parties: BLOCK et al. v. MORRISON et al.
• Court: Missouri Supreme Court

20 S.W. 340

112 Mo. 343

BLOCK et al. v. MORRISON et al.

Supreme Court of Missouri, Division No. 1.

October 31, 1892.

BOND FOR DEED — TITLE CONVEYED — EXECUTION — PUBLIC LANDS — INTEREST ACQUIRED BEFORE ISSUANCE OF PATENT.

1. The record showed that the deed to a judgment debtor of land which was sold on execution was dated several days before the sheriff's sale, though not acknowledged until the day after, but the deed stated that the conveyance was made pursuant to the conditions of a bond executed by the grantor to the grantee, which bond was dated before the judgment was entered on which the land was sold. Held that, without considering the deed, the title bond conveyed to the judgment debtor an interest in the land which was subject to sale under execution.

2. Though at the time of the execution sale the surveyor general had not made a return of the plat of the survey of the land to the recorder of land titles, and consequently the government could have appropriated the land to other purposes at any time before such return to the recorder, yet the judgment debtor had an interest which could be sold on execution, his title having been made good, as against any party but the government, by his taking the initiatory steps to acquire a patent.

3. Judgment was rendered in the circuit court, and on appeal to the supreme court was affirmed, and an execution under which the sale was held was issued out of the supreme instead of the circuit court. Held that, though the sale under that execution might have been voidable if the irregularity in its issuance had been taken advantage of in time, yet after the lapse of 50 years the validity of the sale would not be questioned.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Action in ejectment by J. C. H. D. Block and others against J. L. D. Morrison and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

D. T. Jewett and H. H. Denison, for appellants. J. B. Henderson and Reynolds & Lewis, for respondents.

BLACK, J.

This is an action of ejectment to recover lot 60, in Peter Lindell's second addition to the city of St. Louis. The suit was commenced by the Fourth National Bank of St. Louis. The bank conveyed the lot to Block and Holthus pending the suit, and they were then substituted as plaintiffs. They recovered in the circuit court, and the defendants appealed. The facts of the case, so far as are material to the questions raised in this court, are these: Joseph Hunot claimed a head right under a concession, dated in 1802, for 800 arpens of land in what is now New Madrid county. In 1810 he conveyed the land to Joseph Vandenbenden. The claim was presented to the first board of commissioners for confirmation, but the board rejected and disallowed it on the 31st January, 1811. It was presented again to Frederick Bates, recorder of land titles, and by him approved and recommended for confirmation on the 1st November, 1815. The claim was then confirmed by the act of congress of April 29, 1816. Prior to the confirmation, Vandenbenden conveyed the land to Rufus Easton by a deed dated the 4th November, 1815. It is conceded that the effect of this confirmation by congress was to vest the legal title to the land in Easton. The land having been injured by earthquakes, Easton sought to exchange it for other lands under the provisions of the act of congress of February 17, 1815, entitled "An act for the relief of the inhabitants of the county of New Madrid, in the state of Missouri, who suffered by earthquakes." On the 12th August, 1816, the recorder of land titles issued a certificate stating that Joseph Hunot, or his legal representatives, were entitled to locate 480 acres under the provisions of said act. This certificate is known as "New Madrid Certificate No. 161." On the 16th June, 1818, Rufus Easton, as the legal representative of Hunot, made application to locate the certificate on 480 acres of land, giving a general description of the land in the application. The deputy surveyor surveyed the land, and on the 23d June, 1819, certified this survey to the surveyor general. This survey was designated and is known as "Survey No. 2500." The surveyor general transmitted this survey and the plat made a part of it to the recorder on the 8th January, 1833. The latter recorded the same on the 2d February, 1833, and on that day issued a patent certificate to Joseph Hunot, or his legal representatives, for the 480 acres. This patent certificate was delivered to Peter Lindell, and it was forwarded to the general land office. Conflicting claims were interposed, so that the patent was not issued until the 13th August, 1859. As has been stated, Easton signified his desire to locate his certificate on the land on the 16th June, 1818, and the survey and plat were made on the 23d June, 1819; but the plat and survey were not filed with the recorder until early in January, 1833. Rufus Easton, by his warranty deed dated the 29th September, 1823, acknowledged by him and his wife on the 9th October, 1823, and recorded on the 9th February, 1824, conveyed 240 of the 480 acres to Samuel Hammond. This deed contains a recital that it was made "in consideration of $1,583 to him in hand paid by said Samuel Hammond, and pursuant to the conditions of a certain bond executed by the said Rufus Easton to said Samuel Hammond and James I. Wilkinson, dated September 3, 1818." On July 10, 1819, Easton conveyed the residue of the 480 acres to William Stokes. There is evidence that Hammond went into possession under his title bond, and remained in possession for several years. On the 8th October, 1823, the sheriff sold the 240 acres to Richard Relf and Beverly Chew by virtue of an execution issued upon a judgment against Samuel Hammond, and executed to them a deed, dated the 4th November, 1823, Relf and Chew conveyed the land to Peter Lindell in March, 1840. Lindell also held a deed to the land from Hunot, dated in 1834; and it appears that Lindell took possession at that date, and continued his possession until his death in 1861. The lot in question is part of the 240 acres, and was set off to one of the heirs of Lindell in the partition of that estate. The plaintiffs have acquired all the title of such heir by deeds in due form. The defendants claim title by deeds from the heirs of Samuel Hammond, obtained since 1870. They got possession of the land in 1879 by virtue of an execution on a judgment in an ejectment suit against the tenant of the heir of Lindell, to whom the lot had been assigned in the partition suit. The bank brought this suit to regain possession in 1882.

1. From the foregoing statement it will be seen that all parties to this suit claim under Samuel Hammond; the defendants through the heirs of Hammond, and the plaintiffs under the sheriff's deed. The title is with the defendants, unless the sheriff's deed divested Samuel Hammond of his interest in the land. The defendants assail the sheriff's deed on several grounds, and the first is that Hammond had no interest in the land at the date of the sheriff's sale which could be sold on execution. The sheriff sold the land under the execution against Hammond on the 8th October, 1823, and the deed from Easton to Hammond bears a prior date, viz., 29th September, 1823, but was not acknowledged until 9th October, 1823, the day after the sheriff's sale. The plaintiffs insist that the presumption is, in the absence of other proof, that the deed to Hammond was executed and delivered on the day of its date, though acknowledged at a subsequent date. Such seems to be the rule generally asserted. Devl. Deeds, § 265; Dodge v. Hopkins, 14 Wis. 630. But we express no opinion on this question at this time in view of what was said in Fontaine v. Institution, 57 Mo. 552. The deed from Easton to Hammond states that it was made in consideration of $1,583 paid by Hammond, and pursuant to the conditions of a certain bond executed by Easton to Hammond and Wilkinson, dated the 3d September, 1818. Hammond therefore held a title bond for the conveyance of the land as far back as 1818, which was before the date of the judgment under which the property was sold. Did this title bond create in the vendee an interest in the land which was subject to sale under execution? The answer must be in the affirmative. The statute in force at that time provides that the sheriff's deed "shall be effectual for passing to the purchaser all the real estate and interest which the debtor had or might lawfully part with in the lands at the time judgment was rendered." 1 Terr. Laws, p. 120, § 45. In Brant v. Robertson, 16 Mo. 129, this court said: "When parties have bound themselves by agreement to convey land and pay for it, equity recognizes an interest in the land as already in the purchaser, and the case is the stronger when the purchaser has actually paid in whole or in part; and in either case the interest of the purchaser may be sold on execution, upon the principle that the vendor is to be regarded as seised in equity to the use of the purchaser. But if no money has been paid, and if the person who may become the purchaser is not actually under any obligation to pay, then there is no seisin in the seller, even in equity, to the purchaser's use, and there is no interest in the land in him which is liable to sale on execution." It is true the statute then in force made "all real estate whereof the defendant, or any person for his use, was seised, in law or equity," subject to sale on execution; and "real estate" was defined to be "all estate and interest in lands, tenements, and hereditaments." The words of the statute then in force were different from the words of the statute now in question, but there is no substantial difference in their meaning. The statute now in question makes any interest in land which the debtor may sell subject to sale under execution. That a title bond for the conveyance of land gives the vendee an interest which he may...