DiNgee v. Kearney

• Decision Date: 19 June 1876
• Citation: 2 Mo.App. 515
• Parties: MARGARET DINGEE, Appellant, v. MARY KEARNEY et al., Respondents.
• Court: Missouri Court of Appeals

2 Mo.App. 515

MARGARET DINGEE, Appellant,

v.MARY KEARNEY et al., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 19, 1876.

1. In case of proceedings in the General Court of St. Louis, of date 1806, everything found in the office of the clerk, with the papers, and manifestly relating to the case, is a part of it; and all such papers and entries purporting to prove the record of the cause, though not signed by the presiding judge, are admissible to prove what was done during its progress.

2. After the lapse of seventy years the issuing of necessary process and service will be presumed, to support a judgment of that antiquity.

3. In case of a sheriff's deed, seventy years old, though the record of the deed does not show a seal, yet where the deed has been followed by undisturbed possession a seal will be presumed.

APPEAL from St. Louis Circuit Court.

Affirmed.

D. T. Jewett and N. Holmes, for appellant, cited: Reaume v. Chambers, 22 Mo. 53; Beale v. Lynn, 6 Har. & J. 351; Ricard v. Williams, 7 Wheat. 109; Stillman v. W. R. Mfg. Co., 3 Woodb. & M. 549; Downing v. Ford, 9 Dana, 393; Crocker v. Pendleton, 10 Shep. (Me.) 339; Battles v. Holley, 6 Greenl. (Me.) 145; Mellen v. Locks & Canal Co., 17 Pick. 260; Karl v. Lawrence, 73 Pa. St. 416; Brunswick v. McKean, 4 Me. 570; Ferris v. Brown, 3 Barb. 105; Warfield v. Lindell, 38 Mo. 578; 2 Greenl. on Ev., sec. 537; Digby's History of the Law of Real Prop. 129; Little v. Chauvin, 1 Mo. 626; Landes v. Perkins, 13 Mo. 238; Youse v. Norcum, 12 Mo. 562; Newman v. Studley, 15 Mo. 291; McNair v. Hunt, 5 Mo. 310-312; Hepburn v. Aull, 5 Cranch, 276; Adams v. Buchanan, 49 Mo. 71; Ryan v. Carr, 46 Mo. 483; Scruggs v. Scruggs, 41 Mo. 242; Allen v. King, 35 Mo. 225; Allen v. Moss, 27 Mo. 364; 1 Ter. Laws, 120, sec. 47; Clark v. Hammerle, 27 Mo. 70; Hannibal & St. Jo. R. R. Co. v. Sawyer, 37 Mo. 263; Littleton v. Patterson, 32 Mo. 357; Wag. Stat. 917, secs. 8, 9; Bobb v. Woodward, 50 Mo. 103; May v. Rumney, 1 Mann. (Mich.) 1; Practice Act of Oct. 1, sec. 1804, 7 (1 Ter. Laws 56); Acts concerning Courts, of Oct. 1, 1804, secs. 8-10, 24 (1 Ter. Laws, 60-61); Act of Oct. 1, 1804, sec. 2 (1 Ter. Laws, 65); Act of Oct. 1, 1804, sec. 7 (1 Ter. Laws, 56); Act of Oct. 8, 1806, sec. 5 (1 Ter. Laws, 89); 1 Ter. Laws, 62, secs. 17, 109, 59; Act of Oct. 8, 1806, sec. 2 (1 Ter. Laws, 88, 89); 3 Inst. 173, 1 Greenl. on Ev., secs. 501, 508; Gray v. Davis, 27 Conn. 447; Strong v. Bradley, 13 Vt. 14; Pike v. Crehore, 40 Me. 503, 514; Willard v. Harvey, 24 N. H. 344; Ferguson v. Harwood, 7 Cranch, 412; Fithian v. Monks, 43 Mo. 502; Gibson v. Foster, 2 La. An. 508; Janney v. Spedden, 38 Mo. 395; Chauvin v. Wagner, 18 Mo. 554; Youse v. Norcum, 12 Mo. 564.

A. Hamilton and S. Reber, for respondent, cited: Reaume v. Chambers, 22 Mo. 53; Beale v. Lynn, 6 Har. & J. 53; Landes v. Perkins, 12 Mo. 254; Ryder v. Cohn, 37 Cal. 69; Ludlow's Heirs v. Wade, 5 Ohio, 500; Stevenson's Heirs v. McReary, 11 Smed. & M. 46 et seq.; Best on Presumptions, secs. 109-111; Rey v. Buckley, 7 East, 45; 1 C. & H. Ph. on Ev. (1868) 561, note 13; St. Mary's College v. Attorney General, 3 Jur. (N. S.) 675; 1 Greenl. on Ev. (1866), sec. 46; Williams v. Donald, 2 Head, 695; Griffin v. Sheffield, 38 Miss. 359; Williams v. Bass, 22 Vt. 364; Fox v. Thompson, 31 Pa. St. 172; Kaul v. Lawrence, 73 Penn. 416; McKeon v. Railroad Co., 43 Mo. 405; Taylor v. Dougherty, 1 Watts & S. 327; 1 Ter. Laws, 61, sec. 12; Cooley's Const. Lim. 406; Harvey v. Tyler, 2 Wall. 340; Dunbar v. Hallowell, 34 Ill. 169; Osgood v. Blackmore, 59 Ill. 261; Whiteside v. Barker, 7 Cal. 54; Peck v. Strauss, 33 Ib. 679, 685; Drake v. Duvenich, 45 Cal. 445, 463; Newman v. Cincinnati, 18 Ohio, 331; Knapp v. Abde, 10 Allen, 488; Marburg v. Madison, 1 Cranch, 161; Osborn v. The State, 7 Ohio, 214; 1 Whart. Penn. Dig. 801; Jewell v. Commonwealth, 22 Penn. 94; Davidson v. Slocum, 18 Pick. 466; Miller v. Handy, 40 Ill. 452; McNair v. Hunt, 5 Mo. 309.BAKEWELL, J., delivered the opinion of the court.

This was a suit for dower. The plaintiff made out a prima facie case by proof of the title and seizin of the husband during the marriage, and of his death.

The defendants denied seizin of the husband, and also pleaded certain facts, by way of special defense, to show a bar by limitation. To this special defense plaintiff demurred, and her demurrer was sustained.

On the trial, to defeat the seizin of the husband, defendants endeavored to show that the land in question had been previously conveyed by Grégoire Sarpy, the father and ancestor of plaintiff's husband, to one Joseph Robidoux (under whom defendants claim), by sheriff's sale, in October, 1807, upon a judgment and order of sale rendered on May 22, 1807, in a suit of Antoine V. Bouis v. Grégoire Sarpy, for the foreclosure of a Spanish mortgage, given in 1803, which suit was commenced by filing a petition, on October 30, 1806, in the General Court of the Territory; and they produced in evidence a certified copy of the proceedings and judgment in said cause, and also a certified copy of an instrument purporting to be a deed, by the sheriff, of said land, as the property of Grégoire Sarpy, to the executor of Joseph Robidoux, deceased, in pursuance of said sale, dated November 13, 1809. Defendant also produced in evidence the record book of the Court of Common Pleas of the District of St. Louis, showing an entry made, on November 13, 1809, of an acknowledgment in open court, on that day, by said sheriff, of a deed for the land sold and therein described, to the executor of Joseph Robidoux, deceased. To the admission of the record of judgment in Bouis v. Sarpy plaintiff excepted, for the reason that said record did not show any legal evidence of the issue and service of process upon defendant therein, nor of his appearance in person or by attorney. Plaintiff also excepted to the admission of said record entry of an acknowledgment of the deed by the sheriff in open court, without also producing the deed with such acknowledgment duly certified thereon by the clerk, under the seal of the court.

Plaintiff objected to the admission of the sheriff's deed, when produced, for the reason that the acknowledgment had not been certified thereon by the clerk, under the seal of the court taking the acknowledgment, as required by the statute then in force; and also for the reason that said judgment and order of sale were void for want of jurisdiction of defendant therein without service or appearance.

The sheriff's deed was admitted, subject to instructions, and, at the close of the case, the following instruction was given for the plaintiff, on the subject of this deed:

“The jury are instructed that, if they believe from the evidence that there was no seal to the clerk's certificate of acknowledgment of the sheriff's deed offered in evidence by defendants, then said deed was void and passed no title; and, further, that such defect cannot be supplied or cured by the record entry of such acknowledgment in open court.”

An agreed statement of facts was read by plaintiff, in which it was admitted that the defendants, and those under whom they claim, had been in the actual adverse possession of the premises in question ever since January 1, 1824, claiming title thereto under the said sheriff's sale. Defendants also offered evidence tending to show that Grégoire Sarpy, from the time of said sale and deed down to his death, in 1824, had continued to reside in the town of St. Louis without bringing any suit to recover the possession of said land, or otherwise interfering with the possession thereof, and that the adverse possession had been with his knowledge.

The claim for the lot in question was presented before Recorder Hunt, in 1825, under the act of Congress of May 24, 1824, and the certificate of confirmation was issued on November 25, 1825, to Sarpy's legal representatives. Sarpy was then dead; but Hempstead, under Robidoux, was then, and had long been, in possession, claiming the lot to the exclusion of all others.

It was admitted that all the title acquired by Robidoux was vested by derivative title in the defendants.

Defendants also offered in evidence a mortgage, dated October 6, 1807, from Joseph Robidoux to Antoine V. Bouis, of lot claimed by defendants to include the land in controversy, to secure a debt to said Bouis, due from said mortgagor, on which was indorsed a receipt, by Robidoux to Bouis, of 1,867 livres, in deer skins, on May 24, 1809. This instrument was objected to by plaintiff as irrelevant.

Defendants also offered a certified copy of proceedings in insolvency in the matter of Gregoire Sarpy, showing that he had been discharged from arrest for debt, upon the filing of an inventory dated January 12, 1808, in which the lot in question was not mentioned. This instrument was objected to by plaintiff as irrelevant.

The court gave all the declarations of law asked by the plaintiff, and refused all asked by the defendants except two.

The two instructions given for defendants are, in substance, the same, and declare the law to be “that the record of these proceedings read in evidence, in the case of Bouis v. Sarpy, in the General Court, together with the entry on the record of the Court of Common Pleas for the District of St. Louis, on November 13, 1809, of the acknowledgment by sheriff, in open court, of a deed for the land therein described, to the executor of Joseph Robidoux, furnishes evidence, if the possession of the land has ever since gone with the supposed deed, that there was a sale, by the sheriff, of the land of Grégoire Sarpy, under the judgment or order of sale in the case of Bouis v. Sarpy, above recited; that Joseph Robidoux was the purchaser thereat, and that the sheriff executed and delivered to the executor of Robidoux a deed for the land described in said certificate of acknowledgment.”

Plaintiff excepted to the giving of these instructions.

It will not be necessary, for the purposes of this opinion, to set out...