Block v. Morrison
| Decision Date | 28 November 1892 |
| Parties | Block et al. v. Morrison et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.
Affirmed.
D. T Jewett with Henry H. Denison for appellants.
(1) The execution issued by the clerk of the supreme court, in May 1823, in favor of Relf and Chew and Mary Clark against Hammond, was without authority, for the debt or damages, and was utterly void -- not simply voidable -- as to the debt or damages named in the same. There was no judgment of the supreme court for debt or damages, and the clerk had only authority to issue execution ordered by the judgment for costs and charges, and issue the usual mandate to the circuit court; and the circuit court should have issued execution for the debt and costs of that court. To this point we cite: Territorial Statutes of Missouri, sec. 5, p. 244; Evans v. Wilder, 5 Mo. 313; Meyer v. Campbell, 12 Mo. 607; Musser v. Harwood, 23 Mo.App. 495; Walter v. Tabor, 21 Mo. 75; January v. Speddon, 38 Mo. 395; Wornecke v. Wood, 50 Mo. 356; Dobson v. Murphy, 1 Dev. & Bat. 586; Freeman on Executions, sec. 20, p. 16, note 2, and cases cited. (2) Execution issued out of the supreme court on a judgment recovered in the common pleas court is absolutely void. Albee v. Ward, 8 Mass. 79; Martin v. Clark, 37 Mo. 558; Boyd v. Page, 30 Me. 460; Hastings v. Johnson, 1 Nev. 613. (3) There is no evidence to show that the bond named in the deed from Easton to Hammond created a vendible interest in the obligee. Vide Brant v. Robertson, 16 Mo. 149. (4) An interest in land that a man can "lawfully part with" is a fixed and vested one, such as will control the land and exclude everybody else, if followed up. Even more, it may exclude every one else, and still not be vendible on execution. Bray v. Ragsdale, 53 Mo. 170; Broadwell v. Yantis, 10 Mo. 403; McIlvaine v. Smith, 42 Mo. 55. (5) No title passed to the New Madrid locator, nor any priority of right till the survey was returned to the recorder of land titles, and was by him approved and recorded. Bagnell v. Broderick, 13 Pet. 436; Stoddard v. Chambers, 2 How. 294; Barry v. Gamble, 3 How. 51; Lessieur v. Price, 12 How. 60; Hale v. Gaines, 22 How. 144; Rector v. Ashley, 6 Wall. 142; Gibson v. Chouteau, 13 Wall. 92; Mackay v. Easton, 19 Wall. 633; Hot Springs Cases, 2 Otto, 712. (6) The doctrine of relation did not extend any further back than the date of the return of the survey to the recorder of land titles, to-wit, January, 1833. Lessieur v. Price, 12 How. 60; Rector v. Ashley, 6 Wall. 142; Bradford v. Wolfe, 103 Mo. 399. (7) An application and survey will not maintain ejectment. Gray v. Givens, 26 Mo. 291.
J. B. Henderson and Reynolds & Lewis for respondents.
(1) No former action or judgment in ejectment constitutes a bar to this suit. Ejectment tries only the right to possession, not the title, and a judgment is no bar to a subsequent action between the same parties for the recovery of the same premises. Kimball v. Benna, 70 Mo. 52; Cotter v. Skaggs, 38 Mo. 302; Holmes v. Carondelet, 38 Mo. 551; Prior v. Lambeth, 78 Mo. 538; Ekey v. Inge, 87 Mo. 493; Dunn v. Miller, 8 Mo.App. 467; Hogan v. Smith, 11 Mo.App. 314; Gibson v. Chouteau, 7 Mo.App. 1. (2) It is urged against the sheriff's sale, made by Walker in 1823, that the execution was issued by the superior court instead of the district court. This precise objection came before this court in Meyer v. Campbell, 12 Mo. 603, and was overruled. Besides the execution was in the form required by the law then in force. 1 Territorial Laws, pp. 55, 884-5. The title of a bona fide purchaser at a sheriff's sale cannot be declared void in a collateral proceeding on account of any error or irregularity in the judgment or execution. Landes v. Perkins, 12 Mo. 238. (3) When Easton executed his deed to Hammond on September 29, 1823, it related back to the date of his agreement to convey, made September 13, 1818, and the sheriff's deed conveying Hammond's interest was sufficient to convey any title that inured to Easton or Hammond under the patent issued by the United States. Papin v. Massey, 27 Mo. 452; Jackson v. Bard, 4 Johns. 230; Crowley v. Wallace, 12 Mo. 145; Jackson v. McCall, 3 Cowen, 75. (4) As between parties to conveyance a deed is presumed to have been executed on the day of its date, and not on the day of its acknowledgment. Abrams v. Pomeroy, 13 Ill. 133; Meldrum v. Clark, 1 Marr. (Iowa) 130; Breck v. Cole, 4 Sandf. (N. Y.) 79; Dodge v. Hopkins, 14 Wis. 630. (5) New Madrid locations, like all other inchoate titles to land, are subject to the doctrine of relation. Landes v. Brant, 10 How. 348; Starr v. Starr, 6 Wall. 418; Shepley v. Cowan, 91 U.S. 337. The only limitation placed by the courts on the doctrine of relation is that it shall not work injustice to the rights of innocent third parties acquired between the events which it is proposed to unite by relation. Vancourt v. Moore, 26 Mo. 92; Jackson v. Bard, 4 Johns. 230; Fight v. Doe, 1 Blackf. 127; Sampson v. Thornton, 3 Met. 275; Papin v. Massey, 27 Mo. 445.
OPINION
This is an action of ejectment to recover lot 60 in Peter Lindell's second addition to the city of St. Louis. This 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 eight hundred arpents 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 thirty-first of January, 1811. It was presented again to Frederick Bates, recorder of land titles, and by him approved and recommended for confirmation on the first of 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 fourth of 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 twelfth of August, 1816, the recorder of land titles issued a certificate stating that Joseph Hunot or his legal representatives were entitled to locate four hundred and eighty acres under the provisions of said act. This certificate is known as New Madrid certificate number 161.
On the sixteenth of June, 1818, Rufus Easton, as the legal representative of Hunot, made application to locate the certificate on four hundred and eighty acres of land, giving a general description of the land, in the application. The deputy surveyor surveyed the land, and on the twenty-third of June, 1819, certified this survey to the surveyor general. This survey was designated and is known as survey number 2,500. The surveyor general transmitted this survey and the plat made a part of it to the recorder on the eighth of January, 1833. The latter recorded the same on the second of February, 1833, and on that day issued a patent certificate to Joseph Hunot or his legal representatives for the four hundred and eighty 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 thirteenth of August, 1859.
As has been stated, Easton signified his desire to locate his certificate on the land on the sixteenth of June, 1818, and the survey and plat were made on the twenty-third of 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 twenty-ninth of September, 1823, acknowledged by him and his wife on the ninth of October, 1823, and recorded on the ninth of February, 1824, conveyed two hundred and forty of the four hundred and eighty 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. Wilkerson, dated September 3, 1818." On July 19, 1819, Easton conveyed the residue of the four hundred and eighty 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 eighth of October, 1823, the sheriff sold the two hundred and forty 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 fourth of 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 two hundred and forty 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...
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