Dickson v. Anderson

• Decision Date: 31 January 1845
• Citation: 9 Mo. 156
• Parties: DICKSON v. ANDERSON & THOMPSON.
• Court: Missouri Supreme Court

9 Mo. 156

DICKSON

v.ANDERSON & THOMPSON.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

GEYER & DAYTON, for Appellants.

SPALDING and TIFFANY, for Appellee.

SCOTT, J.

Anderson and Thompson recovered a judgment in a justice's court against James McFarlane, on which an execution issued, and was levied on the property of McFarlane. McFarlane gave a bond for the delivery of the property on the day of sale; which bond was executed by Charles K. Dickson, the appellant, as security for McFarlane. The bond recited that the execution had been levied upon certain property of James McFarlane, describing it, viz: twelve pieces of jeans, containing three hundred and forty-five yards, and four pieces of broad cloth, containing twenty-five yards, of the value of one hundred and fifty dollars. On the day appointed for the delivery of the property, Dickson, the security in the delivery bond, claimed the property as his own, and a jury was summoned to try the right to it, who were not able to agree on the verdict. The property was not delivered according to the tenor of the bond, and the constable returned it as forfeited, to the justice; who, afterwards, in pursuance of law, rendered judgment thereon against McFarlane and Dickson for the debt, interest and costs. From this judgment, an appeal was taken by Dickson to the St. Louis Court of Common Pleas, where on trial de novo, Dickson offered to prove that the property levied on, and for the delivery of which the bond had been given, was his own, and not the property of McFarlane. This evidence was rejected by the court, to which an exception was taken, and properly saved. Judgment was again rendered for Anderson and Thompson, from which Dickson has appealed to this court.

The only point saved by the bill of exceptions, is the propriety of rejecting the testimony offered by Dickson, to show that the property described in the delivery bond was his.

In regard to recitals in deeds, the general rule is, that all parties to a deed are bound by the recitals therein, which operate as an estoppel. Shelly v. Wright, Willis, 9; the Marchioness of Annandale v. Harris, 2 P. Williams, 432. There are cases maintaining the distinction that the rule estopping a party by a recital in a deed, applies to those instances, where he has alleged some fact in his own knowledge, and not to those, when from the nature of the fact recited, it is apparent that the knowledge of it was obtained from the party...