Brown v. Oldham

• Decision Date: 30 June 1894
• Citation: 27 S.W. 409,123 Mo. 621
• Parties: Brown et al. v. Oldham, Appellant
• Court: Missouri Supreme Court

27 S.W. 409

123 Mo. 621

Brown et al. v. Oldham, Appellant

Supreme Court of Missouri, Second Division

June 30, 1894

Appeal from Jackson Circuit Court. -- Hon. L. H. Waters, Special Judge.

Reversed.

Gates & Wallace for appellant.

(1) The description of the land in the alleged deed from Jacob Myers to Erastus Brown of the lot of one arpent in the town of New Madrid, county of New Madrid, "confirmed to and in the name of the said Jacob Myers," is too indefinite and uncertain, is void and conveys nothing. Holme v Strautman, 35 Mo. 293; Campbell v. Johnson, 44 Mo. 247; Cass County v. Oldham, 75 Mo. 50; City of Jefferson v. Whipple, 71 Mo. 519; Fox v Courtney, 111 Mo. 147; Orono v. Veazie, 61 Maine, 431; 2 Devlin on Deeds, p. 315, secs. 1010, 1011. (2) The certified copy of said alleged deed was not admissible in evidence, having been acknowledged before a justice of the peace in the state of Louisiana by a resident of that state and no proof having been made or the loss or destruction of the original. Crispin v. Hannavan, 72 Mo. 548; Territorial Laws of Missouri, p. 179, sec. 3 (July 7, 1807); Territorial Laws of Missouri, p. 422, secs. 1, 2 (December 23, 1815). (3) The plaintiffs failed to establish by any legal or competent evidence that they are descendants or legal representatives of the said Erastus Brown. The members of the family from whom the witness Corbett received his information, were all living and are his coplaintiffs in this suit. His evidence was not admissible. 1 Wharton on Evidence, sec. 215, p. 220; 1 Greenleaf on Evidence [14 Ed.], sec. 103, p. 139; White v. Stratton, 11 Ala. 720. (4) The copy of the will of Erastus Brown, of "Upper Alton in Madison county, state of Illinois," is no evidence that he was the Erastus Brown of the town of Oxford, in Chenango county, and state of New York, mentioned in the deed of Jacob Myers of January 8, 1816. The presumption of identity of person from identity of name does not arise where there is not similarity of residence. Lawson on Presumptive Evidence, rule 57, p. 248; 2 Wharton on Evidence, sec. 1273, p. 477; Cozzens v. Gillespie, 4 Mo. 82. (5) After all these years with a claim of title on record for seventy years, open, continuous, notorious and adverse possession under deed for fifty years, and the plaintiffs making no claim and paying no taxes during all this time, the court has the right, and should, if necessary, presume that George C. Sibley was the owner of certificate number 498, and that all necessary and proper conveyances had been made, either of the certificate, or of the land in New Madrid county, or of the land in controversy to give him a perfect title. Williams v. Mitchell, 112 Mo. 300; Brinley v. Forsythe, 69 Mo. 176; Church v. Bullard, 2 Metc. (Mass.) 363; White v. Loring, 24 Pick. (Mass.) 319; Valentine v. Piper, 22 Pick. (Mass.) 85; Blair v. Marks, 27 Mo. 579; Jackson v. Russell, 4 Wend. 543; Jackson v. Warford, 7 Wend. 62; Briggs v. Prosser, 14 Wend. 227. (6) The deed from the United States to Archibald Gamble, of September 14, 1837, conveyed whatever legal title the United States had to the land. The solicitor of the treasury was authorized by the laws of congress to make this conveyance. See 4 United States Statutes at Large, p. 414, Act May 29, 1830. If the legal title had passed from the United States, there is no question but what the general statutes of limitations of this state commenced to run in favor of defendants when Jonathan Colcord took possession in 1840. (7) There is at least no doubt but what the equitable title passed from the United States when the survey and plat of location was returned by the surveyor to the recorder of land titles, which was December 2, 1839. The actual exchange of the lands took place at that time. Lessieur v. Price, 12 How. (U.S.) 58; Hot Springs Cases, 92 (U.S.) 698; Cabanne v. Lindell, 12 Mo. 184; Gray v. Givens, 26 Mo. 291; Block v. Morrison, 112 Mo. 343.

Bashaw & Isbell and E. P. Johnson for respondents.

(1) The description contained in the deed from Jacob Myers to Erastus Brown, of a one arpent lot in the town of New Madrid, confirmed to and in the name of Jacob Myers, in the absence of any evidence tending to show that Jacob Myers had any other one arpent lot in said town confirmed to him, is perfect. Wear v. Bryant, 5 Mo. 147; S. C., 4 Mo. 106; Gitt v. Eppler, 56 Mo. 138. (2) The objection strikes at the confirmation, but the confirmation would have been valid without a location, as a survey would have fixed the location and passed the title. United States v. McLaughlin, 127 U.S. 428; Langdeau v. Hanes, 21 Wall. 521. (3) The deeds from Jacob Myers to Erastus Brown, Erastus Brown to Rufus Easton and Rufus Easton to Erastus Brown, had all been on record in New Marid county, where the land was situate (93 Mo. 211), more than thirty years prior to the trial, and were admissible in evidence irrespective of any acknowledgments. Secs. 4864, 4865, R. S. 1889. (4) The latter deed contained other land than that sued for, situate in New Madrid, as appears from both it and the confirmations, and both the certified copy of the record of the copy of it in Jackson county and the New Madrid copy were admissible in evidence. Secs. 7452, 7453, 7454. (5) The objection that the original of this deed was neither in the possession nor in the control of the respondents, was not made to it, and this objection was thereby waived by appellant. Smiley v. Cockrell, 92 Mo. 105. (6) The foregoing deeds constituted Erastus Brown and his heirs, the legal representatives of Jacob Myers to the land sued for. Wear v. Bryant, 5 Mo. 147; S. C., 4 Mo. 106; McCamant v. Patterson, 39 Mo. 100; Gibson v. Chouteau, 39 Mo. 536; Hogan v. Page, 2 Wall. 605; Klenke v. Koeltze, 75 Mo. 242; Carpenter v. Rannells, 19 Wall. 138; Block v. Morrison, 112 Mo. 343. (7) The identity of the name of Erastus Brown in the deeds and will, is prima facie evidence that they were the same person, especially, where, as in this case, the documents show the change of residence of the person named, and the burden of disproving identity was on appellant. Hoyt v. Davis, 21 Mo.App. 239; State v. McGuire, 87 Mo. 642; Long v. McDow, 87 Mo. 197; Philips v. Evans, 64 Mo. 23; State v. Kelso, 76 Mo. 505; State v. Moore, 61 Mo. 276; Gitt v. Watson, 18 Mo. 274; Flournoy v. Warden, 17 Mo. 435; Stebbins v. Duncan, 108 U.S. 32; Mackay v. Easton, 19 Wall. 619. (8) The declarations of a deceased relative either by blood or marriage are competent to prove descent. Childress v. Cutter, 16 Mo. 24; Greenleaf on Evidence, sec. 103; Lane v. Lane, 113 Mo. 504. (9) The legal and equitable title to the land sued for remained in the United States until the seventh of May, 1890, when the patent certificate issued. Hot Springs Cases, 92 U.S. 698; Hammond v. Johnston, 93 Mo. 211. (10) Sibley could not recite a title into himself as he attempted to do in this case, and which is the sole foundation of his claim. Joeckel v. Easton, 11 Mo. 118; Fine v. Schools, 30 Mo. 166; Alexander v. Campbell, 74 Mo. 142. (11) Neither can a deed to him be presumed, because the case made did not show him either legally or equitably entitled to one, and the presumption could not arise as the case made was not only consistent with the presumption that he was not entitled to one, but tended strongly to establish the fact that he was not entitled to one. Tyler on Ejectment and Adverse Possession, 568, 569; Jackson v. Manlius, 2 Wend. 357; Ricard v. Williams, 7 Wheat. 59; Oaksmith v. Johnston, 92 U.S. 343; Dunn v. Miller, 75 Mo. 260; Williams v. Mitchell, 112 Mo. 300.

OPINION

Burgess, J.

Ejectment for one hundred and twenty acres of land situated in Jackson county, which was located under New Madrid certificate number 498.

About the year 1816 one Jacob Myers claimed before the recorder of land titles who was acting commissioner for the settlement of land claims in the Territory of Missouri, three lots in the town of New Madrid. Plaintiffs claim title as the only heirs of one Erastus Brown, deceased, of Chenango county, state of New York, to whom it is claimed Myers deeded the land in controversy in 1816.

Plaintiffs, to sustain the issues upon their part, read in evidence, over the objections of the defendant, a certified copy from the record of deeds of New Madrid county of what purported to be a deed dated January 8, 1816, from Jacob Myers, of the Parish of St. Jarmany in the State of Louisana to Erastus Brown of Chenango county of the state of New York, and filed for record October 9, 1816, which, among other lands, purported to convey "three lots of ground in the town of New Madrid, in the county of New Madrid, confirmed to and in the name of him, the said Jacob Myers, by the recorder of land titles for the Territory of Missouri; one of which, a lot of two arpents said Jacob Myers claimed under Francis Hudson, one confirmed in his own name and a quantity of land not mentioned, and one other arpent, confirmed to and in the name of said Jacob Myers."

The certificate of acknowledgment is as follows:

"Signed, sealed and acknowledged in the presence of Thos. H. Claburne, Richard S. Sheppard, W. D. Dixon.

"The above deed has been acknowledged to by Jacob Myers, before me, this eighth day of January, 1816.

"La Cruise,

"Justice of the Peace."

There was also attached a certificate by the governor of the state of Louisiana that said La Cruise was a justice of the peace of the Parish of St. Jarmany.

The objection to the introduction of said copy was because the description of the land was too indefinite and because there was no proof of the execution of the deed. Plaintiffs then showed by one of their number, C. C. Corbett, that plaintiffs did not have possession or control of the original deed and by one...