Brown v. Brown

• Decision Date: 28 February 1870
• Citation: 45 Mo. 412
• Parties: JOHN M. BROWN, Respondent, v. JAMES K. BROWN, Appellant.
• Court: Missouri Supreme Court

45 Mo. 412

JOHN M. BROWN, Respondent,

v.JAMES K. BROWN, Appellant.

Supreme Court of Missouri.

February Term, 1870.

Appeal from Fifth District Court.

Asper, Pollard & Richardson, for appellant.

The court erred in refusing to give judgment for defendant, he having the superior possession, as well as having shown, by his sheriff's deed, prima facie title. It was only necessary for defendant to offer his deed, and the law did not require him to make proof of a judgment. The plaintiff could only overcome this by affirmative evidence, which was not done. (2 Greenl. Ev., § 306; Merchants' Bank v. Harrison, 39 Mo. 433; Knowlton v. Smith, 36 Mo. 307.)McFerran & Collier, for respondent.

The appellant, in his answer, claimed title by purchase at sheriff's sale on execution against the respondent; and thus claiming title from and through the respondent, he is estopped from denying respondent's title prior to and at the time of the purchase. (39 Mo. 433; 9 Mo. 173; 6 Mo. 106; Adams on Eject. 32, and note 77.)

CURRIER, Judge, delivered the opinion of the court.

This is an ejectment suit brought to recover possession of a farm in Daviess county of some three hundred and eighty acres, formed from parts of sections twelve and thirteen, township forty-nine.

The plaintiff deduces title from his deceased brother, William P. Brown, under a purchase from the latter's administrator in October, 1855, for the onsideration of $2,025. The case shows that the plaintiff, soon after the purchase, went into possession, and thenceforward continued to hold and enjoy the property as the owner until March, 1864, when the defendant, in the plaintiff's absence in California, got into possession, and now claims to hold the estate under a title alleged to have been acquired from the plaintiff himself through a judicial sale.

The defendant, by his answer, disclaims as to forty acres, pleads the general issue as to part, and sets up title in himself as to the residue under the alleged judicial sale. The plaintiff recovered judgment in the Circuit Court for all but the forty acres. The judgment was affirmed in the District Court, and the defendant brings the case here by appeal. At the trial in the Circuit Court, the defendant, in support of the issue on his part, read in evidence a deed executed by the sheriff of Daviess county, November 4, 1863, which purports to convey to him all the plaintiff's right, title, and interest in and to the farm in question, except the disclaimed forty acres, for the consideration of $280. The deed recites a judgment rendered by the Probate Court of Daviess county, in favor of one Joab Woodruff, against the plaintiff and one Oxford. The sale and conveyance were made in virtue of an execution issued upon this judgment, which thus constituted the foundation of the proceeding. The defendant also gave evidence tending to show that he took possession under the sheriff's deed, and that he thenceforward claimed the property as his in virtue thereof. The case has been confused by the form of the answer, which seems to contemplate a line of defense different from that actually made at the trial. At the trial the sheriff's deed was employed to defeat the whole action, although it was alleged in the answer as a defense to only a portion of the premises in controversy.

The deed, however, was admissible in evidence as well under the general issue, as showing defect of title in the plaintiff, as under the special averments. The case stands, therefore, as regards the pleadings, as though the defendant had pleaded the deed and the title supposed to have been acquired under it as a defense to the entire action; or, omitting this, had rested his defense solely upon the general issue. And this seems to have been the view taken by the defendant's counsel; for it is insisted that the sheriff's deed cut up the plaintiff's case, root and branch, destroying the entire cause of action. One point made by the defendant in this court is thus expressed: “The court (below) erred in rendering judgment for the plaintiff, and not for the defendant, after the defendant had introduced the sheriff's deed for the same land--the plaintiff not having introduced any evidence to rebut the prima facie case established thereby for the defendant.” It is thus clear that the sheriff's deed was relied upon as a defense to the entire action, and not as a defense to a part of it merely. In other words, the defendant claimed title through the plaintiff to the whole subject-matter of the litigation, founding himself upon the sheriff's deed. The defendant thus stands claiming title through and from the...