Draper v. Bryson

• Decision Date: 31 October 1857
• Citation: 26 Mo. 108
• Court: Missouri Supreme Court
• Parties: DRAPER et al., Respondents, v. BRYSON et al., Appellants.^a1

26 Mo. 108

DRAPER et al., Respondents,

v.BRYSON et al., Appellants.^a1

Supreme Court of Missouri.

October Term, 1857.

1. A purchaser at a sheriff's sale is a purchaser within the meaning of the recording acts.

2. Under the act of February 1, 1817, (1 Terr. Laws, p. 543,) a purchaser at a sheriff's sale, who took with notice of a prior unrecorded deed, was postponed to the prior purchaser.

3. Draper v. Bryson, 17 Mo. 71, affirmed.

Appeal from Pike Circuit Court.

This was an action of ejectment instituted August 18, 1848. The facts of the case are fully set forth in the report of the case as heretofore decided by the Supreme Court. (See 17 Mo. 71.) Plaintiffs assert title in their declaration to the north half of lot 91 in the town of Louisiana. Plaintiffs (as also the defendants) claim title through Joel Shaw and Samuel K. Caldwell, who were jointly interested in the lot as the original proprietors of the town of Louisiana. Plaintiffs assert title to Shaw's interest by virtue of a sheriff's deed, dated December 10, 1823, recorded December 11, 1823, to one Phineas Block. The sheriff's sale was had by virtue of an execution under a judgment against Shaw's administrator. Plaintiffs asserted title to Caldwell's interest by virtue of a deed from the coroner of Pike county to Phineas Block, dated April 14, 1824, recorded August 10, 1824. [The Supreme Court held the title, under which defendants claim, to be superior to that obtained by plaintiffs through this deed. See 17 Mo. 71.] Phineas Block conveyed the land in controversy to plaintiffs by deed dated June, 1847.

The defendants claim title under a deed from Caldwell and the heirs of Shaw to John Bryson, bearing date May 14, 1821; acknowledged July 16, 1821; recorded August 3, 1829. Defendants introduced evidence showing that one John E. Allen purchased the lot in controversy from Shaw and Caldwell, and paid the purchase money; that Shaw died before a deed was made; that Allen afterwards exchanged lots with Bryson, and that Caldwell and the heirs of Shaw made a conveyance to Bryson in 1821.

Evidence was adduced by plaintiffs and defendants bearing upon the question whether Block, at the time of the sheriff's sale to him, had notice of the deed of Caldwell and the heirs of Shaw to Bryson.

The court, at the instance of plaintiffs, gave the following instruction: “Unless the jury believe from the evidence in the cause that Block had notice of the existence of the deed from Shaw and Caldwell to John Bryson at or before his purchase at the sheriff's sale, they should find a verdict for the plaintiffs for the undivided half of the lot in question.”

This was the only instruction given to the jury. The following instructions, asked by defendants, were refused by the court: “1. If the jury believe from the evidence that Shaw and Caldwell, in the lifetime of Shaw, sold the lot No. 91 in question to John E. Allen and received full pay therefor, then Shaw had not at his death any interest in said lot that could be sold under a judgment and execution against the administrator of Shaw obtained after the death of said Shaw. 2. If they believe that Caldwell and Shaw in their lifetime sold the lot in question to John E. Allen and received pay therefor; that Shaw soon after died intestate; that the patent issued to Shaw and Caldwell in October, 1819, for a tract of land including said lot, then the title immediately vested in said Allen, or remained in Caldwell and the heirs of Shaw as trustees for said Allen and his assigns, and no interest at any time vested in the administrator of Shaw that could be sold under a judgment and execution against the said administrator. 5. The judgment in favor of Robert Walsh against John Shaw as administrator of Joel Shaw, read by plaintiffs in evidence, gave no lien on the lot in question; and a purchaser under an execution thereon receives only such an interest as the administrator could at that time convey. 6. At the death of Joel Shaw, whatever interest he may have had in the lot in question vested in his heirs and not in his administrator; and if the heirs by their attorney in fact conveyed the lot in question to John Bryson before the rendition of said judgment, Block acquired no title to the lot at the purchase under an execution on said judgment, or by the sheriff's deed read in evidence.”

The jury found a verdict in favor of plaintiffs for an undivided half of the north half of lot No. 91.

Broadhead, for appellants.

I. The instruction given to...