Callaway v. Fash

• Citation: 50 Mo. 420
• Parties: JAMES CALLAWAY, Respondent, v. WILLIAM A. FASH, Appellant.
• Decision Date: 31 August 1872
• Court: United States State Supreme Court of Missouri

50 Mo. 420

JAMES CALLAWAY, Respondent,

v.WILLIAM A. FASH, Appellant.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Ray Circuit Court.

Green & Swan, for appellant.

Ray & Ray, for respondent.

BLISS, Judge, delivered the opinion of the court.

In bringing his action for the recovery of real estate, the plaintiff relied, first, upon a United States patent for military bounty issued June 12, 1819, to John Nichols, a private. When offered in evidence the patent was objected to because it was not shown to have been recorded in the land department, nor was the usual memorandum of the fact of record legible. The United States statute requires that all patents for lands shall be recorded before they are issued; but, when issued, they must be received as evidence of title, without showing such record.

The usual memorandum is no part of the patent and is not essential to its validity, for I find no statute either requiring it to be made, or making it or the record itself a condition precedent to the validity of the instrument.

The plaintiff next offered a certified transcript from the records of Ray county, of a deed from John Nichols to Winburn Summerlin, executed March 15, 1822, and recorded in October of that year. The preliminary proof was made, and I can see no ground for the objection made to the transcript. The fact that the grantor is described in the deed as John Nichols, though signing as “John Nichols, Jr.,” may raise a question of identity, but cannot exclude the instrument.

The heirs of Summerlin conveyed to plaintiff, and the regularity of the conveyance is not disputed. The original patent and the Summerlin deed were put upon record in 1857 and '58, and the plaintiff also exhibited deed from the heirs of Nichols, dated in 1858, and then recorded, giving as a reason for obtaining them that he did not then know that the last deed from Nichols to Summerlin had been recorded.

The defendant also claims from John Nichols, and first exhibits a United States patent for the same land, of the same date, and both issued to John Nichols, a private of the same company. The seals and signatures of both patents are genuine, and it is evident that one of them must have been forged by changes in the name of the patentee, or in some of the numbers in the description of the land, or in both.

In anticipation of this evidence, and to show that the patent under which he claims was the genuine one, the plaintiff had offered to show, among other things, that the John Nichols who held the same was the soldier who served for the land in Wood's company; that he was the same person who conveyed to Summerlin, and that his father, of the same name, was never in the service; also that the patent exhibited by him was handed over by the patentee to Summerlin at the time of his conveyance, and by the Summerlin heirs was passed to plaintiff when he purchased of them.

Defendant first showed a deed from John Nichols to one Kerr, dated November 13, 1820, and recorded August, 1866; therefore he failed to connect himself with it except by incompetent evidence, which was excluded. This connection, however, was not necessary, as it is sufficient for one in possession to show title in others without establishing his own.

Defendant also exhibited copy of a record of a deed from Winburn Summerlin to one Collins, purporting to have been executed in 1836 and recorded in 1866, which was admitted in evidence, but afterwards excluded upon the ground that the defendant had failed to trace his own title to it. This reason was unsound. If Summerlin during his life had conveyed the land to Collins, his heirs had nothing to convey to the plaintiff, and he could acquire no...