Draper v. Bryson

• Decision Date: 31 October 1852
• Parties: DRAPER et al. v. BRYSON et al.
• Court: Missouri Supreme Court

17 Mo. 71

DRAPER et al.

v.BRYSON et al.

Supreme Court of Missouri.

October Term, 1852.

1. A scire facias to revive a judgment against an administrator, instead of having a sheriff's return of service upon it, had an acknowledgment signed by the administrator, that it was personally served upon him. A judgment by default was afterwards rendered against the administrator. Held, This judgment was not void, and cannot be objected to in a collateral proceeding.

2. A purchaser at a sheriff's sale under execution is not affected by any irregularity in the sheriff's proceedings in making the sale, unless he has participated in occasioning it, or there has been some departure from the requirements of the law, for some fraudulent purpose. Thus, if the sheriff should not give the notice of the sale required by law, it would not affect an innocent purchaser.

3. Under the act of 1817, a subsequent purchaser, who has not recorded his deed within three months from its date, cannot take advantage of the failure of a prior purchaser to record his deed within three months from its date. In such a case, the first purchaser, if his deed is first recorded, has the better title. The same would be the case under the act of 1821.

4. Under the act of 1817, a prior unrecorded deed will prevail over a deed to a subsequent purchaser who has notice of it.

Error to Pike Circuit Court.

This was an action of ejectment, brought to recover possession of part of a lot in the town of Louisiana. To sustain their action the plaintiffs offered in evidence:

1. A patent for the fractional section on which the town was located, bearing date October 1, 1819, to Samuel K. Caldwell and Joel Shaw, the original proprietors of the town tract.

2. Record of a judgment in favor of Robert Wash v. John Shaw, administrator of Joel Shaw, deceased, entered in the Pike Circuit Court, August 11, 1823, and a sheriff's deed to Phineas Block, for the lot in controversy, under said judgment, conveying the interest of said Joel Shaw, and bearing date December 10, 1823. The suit of Wash was originally commenced against Samuel K. Caldwell, in his own right, and against Samuel K. Caldwell and Mary Shaw, administrator and administratrix of Joel Shaw. Both administrators were served with process and appeared and made defense to the action. During the pendency of the suit, Caldwell died, and Mary Shaw resigned her letters of administration, and a scire facias was issued against John Shaw, describing him as the administrator of Joel Shaw, to appear and defend the action, on which writ of scire facias appears the following endorsement: “The undersigned, administrator of the estate of Joel Shaw, unadministered, as within described, acknowledges a personal service of the within writ, May 5th, 1823. John Shaw, administrator.”

At the ensuing term (August, 1823), a judgment by default was taken against said John Shaw, as administrator of Joel Shaw. The defendants objected to the introduction of the record as evidence, because the judgment was void, and to the deed of the sheriff to Block, for the reason that it does not recite the execution, and because, from the face of the deed, it appears that due notice of the sale was not given, and no evidence was offered aliunde, to show that such notice was given; but the court overruled these objections, and both the record of the judgment and the sheriff's deed were read in evidence. Block's deed was recorded December 11, 1823.

3. Plaintiffs also read in evidence the records of four several judgments against Samuel K. Caldwell, confessed before the clerk in vacation, in July and October, 1821, and a deed by the coroner of Pike county to Phineas Block, dated April 14, 1824, filed for record August 10, 1824, and acknowledged the same day, conveying the interest of said Caldwell to the said Block. The plaintiffs read in evidence a deed from Phineas Block to them for the north half of the lot in controversy, dated in June, 1847, proved possession by defendants, and that Joel Shaw died in August, 1819, and Samuel K. Caldwell in January, 1822.

At the close of the plaintiffs' case, defendants asked the court to instruct the jury that, inasmuch as the plaintiffs had not given any evidence to prove that they, or Block, under whom they claim, had made an actual entry upon the lot in question, nor been in actual possession, within twenty years next before the commencement of this suit, the verdict ought to be for defendants. The two instructions embodying the above doctrine were refused by the court, they not being considered as having any applicability, unless there was an adverse possession proved.

Defendants then read in evidence an agreement between Shaw and Caldwell, setting out that they had purchased the preëmption right to the Louisiana town tract, and agreeing to lay out a town, and sell the lots. This agreement bears date July 7, 1817.

2. A power of attorney from the heirs of Joel Shaw to Samuel K. Caldwell, authorizing him to convey and make deeds for the lots contracted to be conveyed by Shaw, in his life time, and Caldwell, dated April 25, 1820.

3. A deed from Caldwell and the heirs of Shaw, by their attorney, to John Bryson, for the lot in controversy, bearing date May 14, 1821, acknowledged July 16, 1821, and filed for record August 3, 1824, under which deed the defendants claim.

The defendants also proved, for the purpose of showing notice to Phineas Block of the existence of the deed from Caldwell and the heirs of Shaw, that, at the time of the sale of Shaw's interest under execution, the officer who made the sale knew that lot 91 was John Bryson's lot; that he never saw the deed to Bryson, but it was generally understood to be Bryson's lot; that Block came to Louisiana in the fall of 1821, as the witness thought, and had a store in the house on the lot adjoining, and was doing business there at the time of his purchase, and until after the sale of Caldwell's interest in the lot to him, witness had no recollection that any one claimed the lot at either sale.

John E. Allen, another witness, proved that he first purchased this lot, and afterwards transferred it to John Bryson; that most of the people at the sheriff's sale and coroner's sale were acquainted with the titles to the lots sold; that there were but few persons in Louisiana in 1823; that lot 91 was worth about seventy dollars in 1823. Witness had no knowledge that Block knew any thing of Bryson's having a deed for the lot.

It was also proved that Block had said, after the sale to Draper, that he had got Draper into a difficulty, which difficulty was a law suit; that he and B. Benbridge had purchased this lot at sheriff's sale; that after his purchase, he had offered to convey his title to the heirs of John Bryson, on their payment to him of the sum of money he had paid out, amounting to between three and five dollars; that the heirs had refused to buy, and that he (Block) had the best title to the lot, and he had sold to Draper.

The plaintiffs objected to Block's statements going in evidence, on the ground that he was a competent witness in the case, and his statements, therefore, hearsay, which objection was overruled by the court.

There was other evidence going to show that Block knew of the existence of the Bryson deed, immediately or soon after his purchase, but no direct testimony that he had any knowledge of such deed, at the time of his purchase at sheriff's sale. There was abundant evidence that Draper knew all about the state of the title, at the time he received his deed from Block. There was also an attempt to prove adverse possession in the defendants, but the evidence clearly disproved this defense.

The plaintiffs asked the court to instruct the jury:

1. That, if they find that the deed of the sheriff to Block was filed for record on the 11th of December, 1823, and the deed from the coroner to Block was filed for record on the 10th of August, 1824, and each within three months from their acknowledgment, and that the deed to John Bryson was executed May 14, 1821, and not recorded until August 3, 1824, the said deed of Bryson is void as against the deeds to Block.

2. That it is immaterial whether Block had notice that the deed of Bryson was in existence, or that he owned lot 91, the construction of the recording acts being that, if Bryson failed to record his deed within three months from its execution, the deed has no validity against a subsequent grantee, who had his deed recorded, or filed for record, within three months after its acknowledgment.

3. Unless the jury find that Block had notice of the existence of the deed from Shaw and Caldwell to John Bryson, at the time he purchased the said right of Shaw and Caldwell, such deed is void as to said Block and those claiming under him.

4. No declarations or statements of Block, after he had parted with his title to Draper, can affect the title of the plaintiffs.

All of which were given by the court except the second.

The defendants prayed the court to give the following:

3. That the judgment in favor of Robert Wash against John Shaw, administrator of Joel Shaw, is void, the court not having obtained jurisdiction over him, at the time it was rendered, and that the sheriff's deed under said judgment ought to be excluded from their consideration in rendering their verdict.

4. That the above deed of the sheriff to P. Block should be rejected on the grounds that it appears from the deed itself, and the notice of sale appended to the deed, that the execution was levied, and notice given on the 27th of November, and the sale had on the 9th of December, 1823, and no other evidence was given to show that the twenty days' notice was given, as required by law.

5. That, unless the jury believe from the evidence that Phineas Block, under whom Draper claims, made an actual entry upon the lot of ground in question, within twenty years next after the execution and delivery of the sheriff's and coroner's deeds to him, in this case...