Carver v. Thornhill

• Decision Date: 31 July 1873
• Citation: 53 Mo. 283
• Parties: EBENEZER CARVER and SAMANTHA CARVER, Respondents, v. BRYANT THORNHILL, Appellant.
• Court: Missouri Supreme Court

53 Mo. 283

EBENEZER CARVER and SAMANTHA CARVER, Respondents,

v.BRYANT THORNHILL, Appellant.

Supreme Court of Missouri.

July Term, 1873.

Appeal from Johnson Court of Common Pleas.

Ashbury, Elliot & Blodgett, for Appellant.

N. H. Conklin, for Respondents.

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover damages for an alleged breach of a covenant against incumbrances, contained in a deed executed by the defendant.

The petition charged, that the defendant by his deed sealed with his seal, dated the 20th day of November, 1861, (which was filed with the petition,) conveyed to the said Samantha Carver, wife of Ebenezer Carver, for the consideration of eighteen hundred dollars, a certain tract of land described as being in Knox County, Ohio; that by said deed the defendant covenanted with the said Samantha Carver, that he was well seized of the premises, and had good right to sell and convey the same, and further, that said premises were free of all incumbrances whatsoever, and with general covenants of warranty. The breach assigned of the covenants of the deed was, that at the date of the deed there was existing a deed of mortgage, given by the defendant on the 28th day of March, 1860, to one William C. Hall, wherein said premises were conveyed to said Hall to secure the payment of a promissory note, given by defendant to said Hall, for the sum of three hundred dollars, which was unpaid; that suit had afterwards been commenced on said note and mortgage in the Court of Common Pleas, in and for Knox County, in the State of Ohio; that judgment had been obtained in said suit foreclosing said mortgage against the premises conveyed, and that the same was, by the decree of the said court in said cause, ordered to be sold, &c. that the said plaintiff, Samantha Carver, in order to prevent a sale of the premises, was compelled to, and did, pay off and discharge the judgment so rendered on said note and mortgage, amounting to two hundred and fifty-eight dollars, and seventy-five cents, and costs, &c. For this amount thus paid, judgment is prayed.

The defendant answered, denying many allegations of the petition.

Upon the trial of the cause, the plaintiff read in evidence the deed from defendant, by which the land named in the petition was conveyed to said Samantha Carver. The plaintiff next offered in evidence a certified transcript of the judgment, and proceedings in the Court of Common Pleas, for Knox County, Ohio, referred to in the petition; this transcript was objected to by the defendant for the reason, that it appeared, that defendant was, at the time of the rendition thereof, a citizen of the State of Illinois, and was only notified in said cause by an order of publication published in said cause, and that the court therefore had no jurisdiction of the person of defendant, and that the judgment was therefore void as to defendant, and could not be read in evidence against him.

The court admitted the evidence and the defendant excepted.

The plaintiff then introduced oral evidence, as well as several letters proved to be in the hand writing of the defendant,...