Cole v. Roe

• Decision Date: 31 January 1867
• Parties: JAMES W. COLE, Plaintiff in Error, v. ALEXANDER ROE, Defendant in Error.
• Court: Missouri Supreme Court

39 Mo. 411

JAMES W. COLE, Plaintiff in Error,

v.ALEXANDER ROE, Defendant in Error.

Supreme Court of Missouri.

January Term, 1867.

Error to Cooper Circuit Court.

The plaintiff filed his petition in ejectment, July 10, 1865. In the year 1855, one Henry Jones made a deed to one James Cole, conveying to him the land in controversy, in trust, to secure the payment of a certain promissory note mentioned in said deed, in favor of one Ignatius Hazell. On the 10th day of April, 1865, James Cole, the trustee in said deed, sold said land, first having given the notice required by the deed of said sale, at which sale Hazell purchased the land for the sum of twenty-five dollars, and by his directions the deed was made to James W. Cole, the plaintiff. In the fall of the year 1854, Ludwell Cramer purchased from Henry Jones said land, and took possession of the same under his contract. Henry Jones afterwards died, leaving David Jones, his only son and heir, surviving him. On the 22d day of September, 1859, Ludwell Cramer, with the consent of David Jones, sold said land to Jonathan Wilson, and Jones made a deed of the same to Wilson, and the consideration money, by agreement with Cramer, was paid to David Jones by Wilson. After Wilson made his purchase he took possession of said land, and he sold and conveyed the same to the defendant, who went into possession of the same.

Bryant & Ferry, and G. T. White, for plaintiff in error.

Draffin, Hutchinson & Muir, for defendant in error.

HOLMES, Judge, delivered the opinion of the court.

This was an action of ejectment. The answer denied the material facts stated in the petition, and set up the statute of limitations as a defence. There was a trial before the court sitting as a jury, and a verdict for the defendant. The trial appears to have been conducted in total disregard of legal principles on both sides. The plaintiff claimed title under a deed of trust executed by Henry Jones, dated March 8th, 1855, and by virtue of a sale and trustee's deed in pursuance thereof, made in 1865. So far as the record shows, this trustee's deed only was given in evidence by the plaintiff; and he offered no evidence to show a possession of the land in Henry Jones, or in the trustee. On the case made by the plaintiff, as it appears in the bill of exceptions, he should have been compelled to submit to non-suit, or to allow a verdict to be taken against him. But the defendant proceeded with the case, and himself offered evidence tending to show...